Opinion
480 KA 17–01322
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Kasseen ALLEN, Defendant–Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25[2] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of one count of attempted burglary in the second degree ( §§ 110.00, 140.25[2] ).
Defendant contends in each appeal that his waiver of the right to appeal is invalid because he did not receive any consideration in exchange therefor. We reject that contention. The record establishes that defendant received consideration inasmuch as the plea agreements resulted in defendant pleading guilty to reduced charges that satisfied several pending charges (see People v. Frank, 258 A.D.2d 900, 900, 685 N.Y.S.2d 555 [4th Dept. 1999], lv denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ; cf. People v. Gramza, 140 A.D.3d 1643, 1643–1644, 33 N.Y.S.3d 620 [4th Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ).
Contrary to defendant's further contention, the record establishes in each appeal that County Court engaged him in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ... and informed him that the waiver was a condition of the plea agreement" ( People v. Krouth, 115 A.D.3d 1354, 1354–1355, 982 N.Y.S.2d 678 [4th Dept. 2014], lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] [internal quotation marks omitted]; see People v. Miller, 161 A.D.3d 1579, 1579, 76 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ). In addition, the record establishes that defendant "read and understood the contents of the written waiver that he executed during [each] proceeding" ( Miller, 161 A.D.3d at 1579, 76 N.Y.S.3d 737 ; cf. People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). We thus conclude that " ‘[t]he plea colloqu[ies], together with the written waiver[s] of the right to appeal executed by defendant, establish[ ] that defendant's waiver[s] of the right to appeal [were] knowingly, intelligently, and voluntarily entered’ " ( Miller, 161 A.D.3d at 1579, 76 N.Y.S.3d 737 ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Contrary to defendant's contention, "there is no indication in the record that [his] age, experience, or background ... rendered his waiver[s] of the right to appeal invalid" ( People v. Ruffins, 78 A.D.3d 1627, 1628, 910 N.Y.S.2d 625 [4th Dept. 2010] ; see People v. Scott, 144 A.D.3d 1597, 1598, 40 N.Y.S.3d 689 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ; see generally People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Moreover, defendant's " ‘monosyllabic affirmative responses to questioning by [the court] do not render his [waivers of the right to appeal] unknowing and involuntary’ " ( People v. Harris, 94 A.D.3d 1484, 1485, 942 N.Y.S.2d 854 [4th Dept. 2012], lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ; see People v. Hand, 147 A.D.3d 1326, 1326–1327, 45 N.Y.S.3d 832 [4th Dept. 2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ).
Defendant's challenge in each appeal to the court's denial of youthful offender status does not survive his valid waiver of the right to appeal. "[W]hen a sentencing court has entirely abrogated its responsibility to determine whether an eligible youth (see CPL 720.10[1], [2] ) is entitled to youthful offender status, an appeal waiver [does] not foreclose [appellate] review of the court's failure to make that determination" ( People v. Pacherille, 25 N.Y.3d 1021, 1023, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; see People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ; People v. Simmons, 159 A.D.3d 1270, 1271, 73 N.Y.S.3d 681 [3d Dept. 2018] ). Here, however, defendant's contention that the court, in effect, entirely abrogated its responsibility to determine whether he was entitled to youthful offender status is belied by the record (see People v. Cardona, 144 A.D.3d 936, 936, 40 N.Y.S.3d 785 [2d Dept. 2016] ). The court properly treated defendant as an eligible youth (see CPL 720.10[1], [2] ; cf. People v. Crimm, 140 A.D.3d 1672, 1673–1674, 34 N.Y.S.3d 285 [4th Dept. 2016] ), but denied him youthful offender status upon consideration of "the gravity of the crime[s] and manner in which [they were] committed, mitigating circumstances, ... defendant's attitude toward society and respect for the law," and the contents of the presentence reports ( People v. Cruickshank, 105 A.D.2d 325, 334, 484 N.Y.S.2d 328 [3d Dept. 1985], affd 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ; see Cardona, 144 A.D.3d at 936, 40 N.Y.S.3d 785 ). Thus, in each appeal, defendant's "valid waiver of the right to appeal ... forecloses appellate review of [the] sentencing court's discretionary decision to deny youthful offender status" ( Pacherille, 25 N.Y.3d at 1024, 32 N.E.3d 393 ). The valid waiver of the right to appeal in each appeal also forecloses review of defendant's request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v. Torres, 110 A.D.3d 1119, 1119, 972 N.Y.S.2d 738 [3d Dept. 2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ; see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Finally, defendant's further challenge to the severity of the sentence in each appeal is foreclosed by his valid waiver of the right to appeal (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).