                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   106033B
________________________________

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

ROGER MARTIN,
                    Appellant.
________________________________


Calendar Date:   October 23, 2015

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

                             __________


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

      Mary E. Rain, District Attorney, Canton (A. Michael Gebo of
counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Rogers, J.), rendered May 2, 2013, convicting defendant
upon his plea of guilty of the crime of attempted assault in the
second degree.

      Following an altercation with another inmate at a state
correctional facility, defendant was indicted and charged with
one count of promoting prison contraband in the first degree and
one count of assault in the second degree. In full satisfaction
of that indictment, defendant pleaded guilty to attempted assault
in the second degree and was sentenced to the agreed-upon prison
term of 1½ to 3 years – said sentence to be served consecutively
to the sentence he then was serving. Defendant now appeals,
                               -2-                106033B

contending only that his sentencing status is unclear.1

      Initially, as the People concede, defendant is entitled to
intermediate appellate review of his conviction – notwithstanding
defendant's deportation to Jamaica during the pendency of this
appeal (see CPL 450.10; People v Ventura, 17 NY3d 675, 679-681
[2011]; People v Jones, 104 AD3d 957, 957 [2013]). Additionally,
in view of County Court's failure to distinguish the right to
appeal from the remainder of the rights automatically forfeited
by defendant upon his plea of guilty, as well as the court's
limited inquiry into whether defendant fully appreciated and
understood the terms of the written waiver that he executed, we
agree that defendant did not knowingly, intelligently and
voluntarily waive his right to appeal (see People v Vences, 125
AD3d 1050, 1051-1052 [2015]). That said, defendant's present
claim – that his sentencing status is not clear from the record –
is unpreserved for our review absent evidence of an appropriate
postallocution motion (see People v Mayers, 74 NY2d 931, 932
[1989]; People v Dolder, 111 AD3d 985, 985 [2013]).

      In any event, the record reflects that defendant admitted
his prior felony conviction (both during the course of his plea
and at the time of sentencing), voiced no objection to the
People's predicate felony statement detailing his prior violent
felony conviction and thereafter was sentenced consistent with
both the terms of the plea agreement and his status as a second
violent felony offender. Accordingly, we discern no need to
remit this matter to County Court in order to clarify defendant's
sentence (compare People v Helmus, 125 AD3d 884, 884-885 [2015],
lv denied 25 NY3d 989 [2015]). The uniform sentence and
commitment form, however, incorrectly bears a notation that
defendant was sentenced as a second felony offender instead of a
second violent felony offender. "While this error does not


     1
        Our prior decision in this matter regarding an Anders
brief (125 AD3d 1016 [2015]), as well as defendant's current
notice of appeal, bear the same incorrect judgment date and Trial
Judge – an inaccuracy that we will overlook for purposes of this
appeal (see People v Disotell, 123 AD3d 1230, 1231 n 2 [2014], lv
denied 25 NY3d 1162 [2015]).
                              -3-                  106033B

require that an otherwise legal sentence be vacated, the uniform
sentence and commitment form must be amended accordingly" (People
v Amell, 120 AD3d 1491, 1491 [2014] [internal quotation marks and
citations omitted]).

     McCarthy, J.P., Lynch and Devine, JJ., concur.



      ORDERED that the judgment is affirmed, and matter remitted
for entry of an amended uniform sentence and commitment form.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
