                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 31, 2016                  106598
                                                       100599
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

STEVEN F. RUSHLOW JR.,
                    Appellant.
________________________________


Calendar Date:   February 8, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(George J. Hoffman Jr. of counsel), for appellant.

      Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered December 16, 2013, convicting
defendant upon his pleas of guilty of the crimes of aggravated
driving while intoxicated and driving while intoxicated.

      In June 2013, in satisfaction of a three-count indictment,
defendant pleaded guilty to aggravated driving while intoxicated
and waived his right to appeal, both orally and in writing. At
the time of his guilty plea, he was participating in a substance
abuse treatment program and was expected to continue to do so
while the criminal matter was pending. He was released to
probation supervision pending sentencing, which was set for
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                                                 100599

September 2013. At that time, he was to be sentenced under the
terms of the plea agreement to six months in jail and five years
of probation.

      Prior to sentencing, however, defendant violated the
conditions of his probation release multiple times and he was
arrested for driving while intoxicated. He waived indictment
with respect to the new charge and agreed to be prosecuted by a
superior court information. Plea proceedings ensued during which
County Court advised defendant that, if he pleaded guilty to the
new crime, he would be sentenced to a prison term of 1a to 4
years that would run consecutively to the 1 to 3-year prison term
that the court was now going to impose on the aggravated driving
while intoxicated conviction. Defendant pleaded guilty to
driving while intoxicated and waived his right to appeal, both
orally and in writing. Thereafter, he was sentenced to
consecutive prison terms of 1 to 3 years on the aggravated
driving while intoxicated conviction and 1a to 4 years on the
driving while intoxicated conviction. He now appeals.

      Initially, we find that defendant's appeal waivers were
valid inasmuch as "County Court adequately explained the nature
of the rights that defendant was waiving, the appeal rights that
he could not waive, and that the right to appeal is separate and
distinct from the rights automatically forfeited upon a plea of
guilty" (People v Lyman, 119 AD3d 968, 969 [2014]; see People v
Lopez, 6 NY3d 248, 256-257 [2006]; People v Perkins, 125 AD3d
1045, 1047 [2015]). Thus, he is precluded from challenging the
respective sentences as harsh or excessive (see People v Rubio,
133 AD3d 1041, 1042 [2015]; People v Perkins, 125 AD3d at 1047).

      Defendant further argues that County Court erred in
imposing an enhanced sentence on the aggravated driving while
intoxicated conviction because he was not advised of the
potential consequences of his failure to comply with supervised
release conditions or that his arrest prior to sentencing would
subject him to an enhanced sentence. Although defendant's valid
appeal waiver does not foreclose him from raising this claim, it
has not been preserved for our review due to defendant's failure
to either object to the enhanced sentence or make a motion to
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                                                 100599

withdraw his plea (see People v Bucknor, 116 AD3d 1233, 1234
[2014]; People v Stanley, 100 AD3d 1152, 1152-1153 [2012]).
Nevertheless, despite the lack of preservation, we shall exercise
our interest of justice jurisdiction to take corrective action.

      "A sentencing court may not impose an enhanced sentence
unless it has informed the defendant of specific conditions that
the defendant must abide by or risk such enhancement, or give the
defendant an opportunity to withdraw his or her plea before the
enhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984
[2014]; see People v Lewis, 98 AD3d 1186, 1186 [2012]; People v
Lindsey, 80 AD3d 1005, 1006 [2011]). Here, the plea involving
the aggravated driving while intoxicated charge does not reveal
that County Court conditioned the sentencing commitment on
defendant's compliance with the terms of his probation
supervision release or that it gave him a Parker/Outley warning
advising him that his arrest pending sentencing could expose him
to an enhanced sentence. Given this failure, County Court had an
affirmative obligation to provide defendant with the opportunity
to withdraw his plea to the aggravated driving while intoxicated
charge once the court planned on imposing an enhanced sentence
(see People v Lewis, 98 AD3d at 1187; People v Bonacci, 52 AD3d
1189, 1189 [2008]). The record does not establish that the court
provided defendant with such an opportunity or otherwise
"demonstrate that defendant understood and knowingly waived the
right to withdraw his plea" (People v Lewis, 98 AD3d at 1187).
Therefore, we vacate the sentence on the aggravated driving while
intoxicated charge and remit the matter to County Court to impose
the agreed-upon sentence or provide defendant with the option to
withdraw his plea to that charge (see People v Tole, 119 AD3d at
984; People v Stanley, 100 AD3d at 1153; People v Lewis, 98 AD3d
at 1187).

     McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
                              -4-                  106598
                                                   100599

      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by vacating the sentence
imposed on defendant's conviction of aggravated driving while
intoxicated; matter remitted to the County Court of St. Lawrence
County for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
