                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered:     June 30, 2016                   106662
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                                                         106664
________________________________

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

SCOTT W. BICKFORD,
                    Appellant.
________________________________


Calendar Date:   May 25, 2016

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

                               __________


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

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                               __________


Peters, P.J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered February 11, 2014, convicting
defendant upon his plea of guilty of the crimes of criminal sale
of a firearm in the third degree, falsely reporting an incident
in the second degree and grand larceny in the third degree.

      Defendant waived indictment and pleaded guilty to criminal
sale of a firearm in the third degree, falsely reporting an
incident in the second degree and grand larceny in the third
degree as charged in three superior court informations. In
connection therewith, he orally waived his right to appeal and
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executed three written appeal waivers. Under the terms of the
plea agreement, defendant was required to participate in the
judicial diversion program (hereinafter the JDP) under which he
was to submit to substance abuse treatment during a period of
interim probation and, upon successful completion, would be
sentenced to concurrent five-year periods of probation. In the
event, however, that defendant did not successfully complete the
JDP, he would be sentenced to a term of imprisonment, which could
be as much as an aggregate maximum of 18 years, to be followed by
10 years of postrelease supervision.

      Defendant experienced many difficulties complying with
conditions governing the JDP and eventually a petition was filed
seeking to terminate his participation based on numerous
violations. Defendant admitted to these violations and, in
return, County Court agreed to sentence him as a second felony
offender on the underlying convictions to an aggregate prison
term of eight years, to be followed by 10 years of postrelease
supervision. Defendant was to be remanded to jail pending
sentencing and County Court admonished him that his failure to
comply with the rules of the jail would relieve it of its
obligation to impose the promised sentence. While in jail
awaiting sentencing, defendant engaged in a verbal altercation
with another inmate and physically threatened him, necessitating
the intervention of staff. As a result of this incident, County
Court sentenced defendant to an aggregate prison term of nine
years, to be followed by 10 years of postrelease supervision.
Defendant now appeals.

      Defendant's sole challenge is to the severity of the
sentence. Initially, we note that this challenge is not
precluded by defendant's waiver of the right to appeal as it does
not appear from the record that he was advised of the separate
and distinct nature of this right (see People v Lopez, 6 NY3d
248, 256 [2006]; People v Lemon, 137 AD3d 1422, 1423 [2016];
People v Gilbert, 106 AD3d 1133, 1133 [2013]). Absent a valid
waiver, we address the merits of defendant's claim, but find it
to be unavailing. Defendant has a lengthy criminal record and
continually violated conditions governing the JDP while he was a
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participant. In addition, he violated the jail rules by engaging
in an altercation with another inmate fully knowing that this
could result in a greater sentence. Furthermore, the sentence
imposed was within the sentencing parameters agreed to by
defendant under the terms of the plea agreement and was
significantly less than his maximum exposure. In view of the
foregoing, we find no extraordinary circumstances or any abuse of
discretion warranting a reduction of the sentence in the interest
of justice (see People v March, 122 AD3d 1001, 1002 [2014];
People v Terry, 122 AD3d 955, 956 [2014]).

     McCarthy, Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
