                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 12, 2017                   106151B
________________________________

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

AKIM BATES, Also Known as GEE,
                    Appellant.
________________________________


Calendar Date:   December 13, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                             __________


     G. Scott Walling, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Tracey A.
Brunecz of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered June 14, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sale
of a controlled substance in the third degree.

      When this case was previously before this Court, we
rejected counsel's Anders brief, withheld decision and assigned
new counsel to represent defendant on appeal (139 AD3d 1110
[2016]). New counsel has submitted a brief challenging the
validity of defendant's waiver of the right to appeal and the
severity of the sentence.

      Turning to the appeal waiver, the record discloses that
defendant executed a written waiver and related to County Court
                              -2-                  106151B

during the plea colloquy that he voluntarily signed it. County
Court did not, however, explain the nature and ramifications of
the waiver or ensure that defendant had read and understood it
(see People v Lemon, 137 AD3d 1422, 1423 [2016], lv denied 27
NY3d 1135 [2016]; People v Williams, 132 AD3d 1155, 1155 [2015],
lv denied 27 NY3d 1157 [2016]). Under these circumstances, we
conclude that the waiver was invalid and does not preclude
defendant from challenging the severity of the sentence (see
People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lemon,
137 AD3d at 1423).

      Upon his plea of guilty to the crime of criminal sale of a
controlled substance in the third degree, defendant was sentenced
as a second felony offender to five years in prison, to be
followed by three years of postrelease supervision. Given
defendant's extensive criminal record and his acquiescence to the
sentence as part of the plea agreement, we find no extraordinary
circumstances nor any abuse of discretion warranting a reduction
of the sentence in the interest of justice (see People v Day, 133
AD3d 920, 920 [2015]; People v Rabideau, 130 AD3d 1094, 1095
[2015]).

     Peters, P.J., Garry, Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
