Opinion
619 KA 21-01539
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Lamar CEPEDA, Defendant-Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We affirm. Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Pinet , 201 A.D.3d 1370, 1370, 160 N.Y.S.3d 521 [4th Dept. 2022], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 452, 185 N.E.3d 973 [2022] ; People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; see generally People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ).
We conclude that County Court did not abuse its discretion in declining to adjudicate defendant a youthful offender (see People v. Simpson , 182 A.D.3d 1046, 1047, 120 N.Y.S.3d 910 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 823, 151 N.E.3d 504 [2020] ; see generally People v. Minemier , 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ). In addition, having reviewed the applicable factors pertinent to a youthful offender determination (see People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we decline to exercise our interest of justice jurisdiction to grant him such status (see Simpson , 182 A.D.3d at 1047, 120 N.Y.S.3d 910 ; People v. Shrubsall , 167 A.D.2d 929, 930, 562 N.Y.S.2d 290 [4th Dept. 1990] ; cf. Keith B.J. , 158 A.D.3d at 1161, 70 N.Y.S.3d 291 ). Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.