                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 2, 2015                       106316
________________________________

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

GERALD A. RABIDEAU,
                    Appellant.
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Calendar Date:    May 26, 2015

Before:    Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

                              __________


     Lisa A. Burgess, Indian Lake, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy
Blatchley of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Clinton
County (McGill, J.), rendered September 4, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sale
of a controlled substance in the third degree.

      Defendant was charged with criminal sale of a controlled
substance in the third degree (two counts) and criminal
possession of a controlled substance in the third degree (two
counts). In satisfaction of the charges, he pleaded guilty to
one count of criminal sale of a controlled substance in the third
degree and purportedly waived his right to appeal. In accordance
with the plea agreement, County Court sentenced defendant, as a
second felony offender, to a prison term of seven years to be
followed by two years of postrelease supervision. Defendant now
                              -2-                  106316

appeals, contending that his appeal waiver is invalid and that
his agreed-upon sentence is harsh and excessive.

      Initially, we cannot conclude that defendant's waiver of
the right to appeal was knowingly, intelligently and voluntarily
made inasmuch as County Court did not adequately explain to
defendant that his waiver of the right to appeal was separate and
distinct from the rights automatically forfeited upon a plea of
guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011];
People v Labaff, 127 AD3d 1471, 1471 [2015]; People v Ritter, 124
AD3d 1133, 1134 [2015]). Although a written waiver dated the
same day as the plea proceeding is in the record, "County Court
made no inquiry as to whether defendant understood [it] or
whether his counsel had in fact discussed the waiver[] with him"
(People v Phipps, 127 AD3d 1500, 1501 [2015]; see People v
Vences, 125 AD3d 1050, 1051-1052 [2015]). Accordingly, we hold
that the appeal waiver is unenforceable and, thus, defendant's
challenge to the sentence as harsh and excessive is not precluded
(see People v Lopez, 6 NY3d 248, 257 [2006]; People v Ashlaw, 126
AD3d 1236, 1237 [2015]). However, based upon defendant's
extensive criminal history, we find no extraordinary
circumstances or abuse of discretion that would require
modification in the interest of justice (see People v Labaff, 127
AD3d at 1472; People v Richards, 124 AD3d 1146, 1147-1148 [2015],
lv denied 25 NY3d 992 [2015]).

     Lahtinen, J.P., McCarthy and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
