Opinion
1146 KA 18-01558
12-20-2019
The PEOPLE of the State of New York, Respondent, v. David P. DAOUST, Jr., Defendant-Appellant. (Appeal No. 1.)
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In both of these appeals, defendant appeals from judgments convicting him upon his pleas of guilty of burglary in the third degree ( Penal Law § 140.20 ) and petit larceny (§ 155.25). Contrary to defendant's contention in both appeals, the waivers of the right to appeal were knowingly, voluntarily, and intelligently entered. The record establishes that County Court "engaged defendant in an adequate colloquy to ensure that the waiver[s] of the right to appeal w[ere] a knowing and voluntary choice ..., and did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea" ( People v. Lamagna, 173 A.D.3d 1772, 1772, 102 N.Y.S.3d 838 [4th Dept. 2019], lv denied 34 N.Y.3d 934, 109 N.Y.S.3d 706, 133 N.E.3d 407 [2019] [internal quotation marks omitted]; see People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] ; see also People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). The valid waivers of the right to appeal foreclose review of defendant's challenges to the severity of the sentences (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Indeed, contrary to defendant's contentions, inasmuch as he was clearly informed of the ramifications on the sentences if he violated the conditions of the plea agreements by failing to complete the judicial diversion program, the waivers of the right to appeal encompass defendant's challenges to the severity of the sentences he received upon failing to complete that program (see People v. Savage, 158 A.D.3d 854, 855–856, 70 N.Y.S.3d 602 [3d Dept. 2018] ; see generally Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The valid waivers of the right to appeal also foreclose review of the court's discretionary decision to deny youthful offender status (see People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Allen, 174 A.D.3d 1456, 1457–1458, 108 N.Y.S.3d 243 [4th Dept. 2019], lv denied 34 N.Y.3d 978, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2019] ; Lamagna, 173 A.D.3d at 1773, 102 N.Y.S.3d 838 ), as well as defendant's requests that this Court exercise its interest of justice jurisdiction to adjudicate him a youthful offender (see Allen, 174 A.D.3d at 1458, 108 N.Y.S.3d 243 ; People v. Castaneda, 173 A.D.3d 1791, 1792, 103 N.Y.S.3d 722 [4th Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019] ).