                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 28, 2016                     106891
________________________________

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

JUSTIN GONZALEZ,
                    Appellant.
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Calendar Date:   March 24, 2016

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

                              __________


     Cliff Gordon, Monticello, for appellant.

      James R. Farrell, District Attorney, Monticello (Hannah
Rose Prall of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered March 5, 2014, convicting defendant
upon his pleas of guilty of the crimes of assault in the first
degree, assault in the second degree, resisting arrest and
criminal mischief in the fourth degree.

      Defendant pleaded guilty to a superior court information
charging him with assault in the second degree, resisting arrest
and criminal mischief in the fourth degree and waived his right
to appeal. Prior to sentencing, defendant was involved in
another incident and ultimately pleaded guilty to assault in the
first degree and, again, waived his right to appeal. In
accordance with the plea agreements, County Court sentenced
defendant to concurrent prison terms of seven years followed by
                              -2-                106891

five years of postrelease supervision on each of the assault
convictions and one year each on the remaining two misdemeanor
convictions, the sentences to run concurrently. Defendant now
appeals.

      Initially, we find that defendant's waivers of the right to
appeal were invalid. Although defendant executed detailed
written waivers, a review of the record establishes that County
Court "did not adequately convey that the right to appeal is
separate and distinct from those rights automatically forfeited
upon a plea of guilty but, rather, improperly lumped those rights
together," and the court did not adequately "ensure that
defendant understood the content or consequences of the appeal
waiver" (People v Williams, 132 AD3d 1155, 1155 [2015] [internal
quotation marks and citations omitted]; see People v Mones, 130
AD3d 1244, 1244-1245 [2015]). As such, defendant's challenge to
the severity of the sentences imposed is properly before us for
review. Nonetheless, we find that the agreed-upon sentences are
not harsh or excessive as our review of the record does not
reveal an abuse of County Court's discretion or any extraordinary
circumstances that would warrant a reduction of defendant's
sentence in the interest of justice (see People v Filion, 134
AD3d 1244, 1245 [2015]; People v Anderson, 129 AD3d 1385, 1385
[2015], lvs denied 26 NY3d 965 [2015]).1




    1
        We note that the period of postrelease supervision for
defendant's conviction of assault in the second degree, which is
a class D violent felony (see Penal Law § 120.05 [3]), shall not
be "more than three years whenever a determinate sentence of
imprisonment is imposed pursuant to [Penal Law § 70.02 (3)] upon
a conviction of a class D . . . violent felony offense" (Penal
Law § 70.45 [2] [e]). However, inasmuch as the five-year period
of postrelease supervision imposed in connection with defendant's
conviction of assault in the first degree was proper (see Penal
Law § 70.45 [2] [f]), and the sentences imposed are to run
concurrently, any challenge to the improperly imposed postrelease
supervision is academic.
                        -3-                  106891

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
