People v. Faircloth

People v Faircloth (2018 NY Slip Op 04340) People v Faircloth 2018 NY Slip Op 04340 Decided on June 13, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 13, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ. 2016-11862 (Ind. No. 87/16) [*1]The People of the State of New York, respondent, v Joseph Faircloth, Jr., appellant. Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered October 21, 2016, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. When the defendant waived his right to appeal, he was misinformed by the County Court that the maximum sentence that he could receive was seven years of imprisonment followed by three years of postrelease supervision. Subsequently, the defendant was sentenced to seven years of imprisonment followed by five years of postrelease supervision. Under these circumstances, the defendant's waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see People v Eron, 79 AD3d 1774, 1775; People v Fehr, 303 AD2d 1039, 1040; cf. People v Lococo, 92 NY2d 825; see also People v Eldridge, 8 AD3d 294, 295). Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86). BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court