| People v Walley |
| 2017 NY Slip Op 03570 [150 AD3d 1334] |
| May 4, 2017 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 28, 2017 |
[*1]
| The People of the State of New York, Respondent, v John R.
Walley, Appellant. |
G. Scott Walling, Schenectady, for appellant.
J. Anthony Jordon, District Attorney, Fort Edward (Sara E. Fischer of counsel), for
respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County (McKeighan,
J.), rendered April 24, 2015, convicting defendant upon his plea of guilty of the crime of
aggravated criminal contempt.
Defendant was charged in three separate indictments with multiple crimes arising from
various incidents of inappropriate contact that he had with the victim, who is the mother of his
children and the subject of an order of protection. The indictments were consolidated and
defendant entered an Alford plea of guilty to the crime of aggravated criminal contempt
in satisfaction thereof. Under the terms of the plea agreement, he waived his right to appeal and
was to be sentenced as a second felony offender to 21/2 to 5 years in prison.
County Court sentenced defendant to the agreed-upon prison term and directed that it run
consecutively to the 1 to 3-year resentence that had been imposed upon his prior conviction of
criminal mischief in the third degree. Defendant now appeals.
Defendant challenges the severity of the sentence which, when added to the prison term that
he is serving upon being resentenced for criminal mischief in the third degree, amounts to an
aggregate prison term of 31/2 to 8 years. Preliminarily, the People concede, and we
agree, that defendant's waiver of the right to appeal is invalid and does not preclude him from
raising this challenge, inasmuch as the record does not disclose that he was advised of and fully
understood the separate and distinct nature of the waiver (see People v Cadet, 144 AD3d 1335, 1336-1337 [2016], lv
denied 28 NY3d 1143 [2017]; People v Maxwell, 142 AD3d 739, 740 [2016]). As to [*2]the merits, defendant agreed, as part of the Alford plea, to
the sentence of 21/2 to 5 years in prison, which was well within the statutory
parameters (see Penal Law § 70.06 [3] [d]; [4] [b]). Although defendant
maintains that there is an absence of any on-the-record discussion of the manner in which the
sentence would run, the record discloses that the plea offer that was communicated to defendant
specified that such sentence would run consecutively to his resentence on the criminal mischief
conviction. Furthermore, defendant has a lengthy criminal record characterized by multiple
incidents of domestic violence and repeated violations of orders of protection. In view of the
foregoing, we find no extraordinary circumstances nor any abuse of discretion warranting a
reduction of the sentence in the interest of justice (see People v Lawing, 110 AD3d 1354, 1356 [2013], lv
denied 22 NY3d 1200 [2014]; People v Spear, 37 AD3d 870, 871 [2007]).
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.