Calendar Date: June 12, 2017
Patnode, Rural Law Center of New York, Castleton (Kelly L.
Egan of counsel), for appellant.
E. Rain, District Attorney, Canton (Matthew L. Peabody of
counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the County Court of St. Lawrence County
(Richards, J.), rendered April 22, 2015, (1) convicting
defendant upon his plea of guilty of the crime of attempted
burglary in the second degree, and (2) which revoked
defendant's probation and imposed a sentence of
2007, defendant pleaded guilty to attempted burglary in the
second degree in satisfaction of a two-count indictment and
was sentenced, as a youthful offender, to five years of
probation, which was later extended. In 2013, defendant was
again sentenced to a five-year term of probation after he
pleaded guilty to another charge of attempted burglary in the
second degree committed in 2009. In 2015, defendant was
in the second degree stemming from a 2014 home invasion and,
as a result, was also charged with violating the conditions
of his probationary sentences. Under the terms of a plea
agreement intended to resolve the foregoing pending matters,
defendant waived indictment and pleaded guilty to the reduced
charge of attempted burglary in the second degree in
satisfaction of a superior court information related to the
2015 charge. As part of the agreement, defendant acknowledged
that he was a second violent felony offender on the new
charge and admitted violating the conditions of probation,
and was required to waive his right to appeal. In accordance
with the terms of the agreement, County Court revoked
probation and resentenced defendant to concurrent prison
terms of 1 to 4 years on the 2007 conviction and four years
followed by three years of postrelease supervision for the
2013 conviction, and imposed a consecutive prison sentence of
five years with five years of postrelease supervision, as a
second violent felony offender, for the 2015 conviction.
Defendant now appeals.
affirm. Defendant's sole contention on appeal is that the
sentence is harsh and excessive. As an initial matter, while
a waiver of appeal was recited as a condition of the plea
agreement, the record does not reflect that defendant
understood and fully appreciated the consequences of the
appeal waiver or that it applied to both the sentence and the
resentencing  (see People v Sanders, 25
N.Y.3d 337, 340 ; People v Lopez, 6 N.Y.3d
248, 256 ). County Court provided no explanation of the
meaning of the right to appeal or the waiver and did not ask
defendant if he had discussed the waiver or appellate process
with counsel (see People v Lewis, 138 A.D.3d 1346,
1347 , lv denied 28 N.Y.3d 1073');">28 N.Y.3d 1073 ;
People v Davis, 136 A.D.3d 1220, 1221 , lv
denied 27 N.Y.3d 1068');">27 N.Y.3d 1068 ; cf. People v
Bryant, 28 N.Y.3d 1094, 1096 ). While defendant
signed a written waiver in court, the court failed to
ascertain that defendant had read and understood it, was
aware of its contents or, again, had reviewed it with counsel
(see People v Davis, 136 A.D.3d at 1221). As the
waiver of appeal was not valid, defendant's challenge to
the severity of the sentences is not precluded (see
People v Lopez, 6 N.Y.3d at 256; People v
Larock, 139 A.D.3d 1241, 1242 , lv denied
28 N.Y.3d 932');">28 N.Y.3d 932 ).
we are not persuaded that the agreed-upon sentences are harsh
and excessive given defendant's recurring violations of
the conditions of probation over the span of many years and
his repeated commission of burglaries while on probation.
Although defendant was only 17 years old at the time of the
2007 offense, he was granted youthful offender treatment and
was permitted to participate in a judicial diversion program
(see CPL art 216). Given the seriousness of
defendant's criminal history and his commission of
another home invasion in 2014 at the age of 25 while wearing
a mask and trying to forcibly steal from the occupants, we
discern no abuse of discretion or extraordinary circumstances
warranting a reduction of the sentences in the interest of
justice (see CPL 470.15  [b]).
Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ., concur.
that the judgment is affirmed.
 The record does not reflect that defendant
previously waived his right to appeal in connection with the