Opinion
01-18-2017
The PEOPLE, etc., respondent, v. Michael DAWKINS, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Donnelly, J.), imposed September 3, 2015, upon his conviction of attempted murder in the second degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. Dawkins, 131 A.D.3d 482, 13 N.Y.S.3d 908 ).
ORDERED that the resentence is affirmed.Under the circumstances of this case, the defendant's purported waiver of the right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ), and, thus, does not preclude review of his claim that the Supreme Court improvidently exercised its discretion in denying youthful offender treatment (cf. People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 ).
" ‘The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case’ " (People v. Mullings, 83 A.D.3d 871, 872, 921 N.Y.S.2d 152, quoting People v. Ortega, 114 A.D.2d 912, 912, 495 N.Y.S.2d 82 ). Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see CPL 720.20[1] ; People v. Green, 110 A.D.3d 825, 826, 973 N.Y.S.2d 679 ; People v. Williams, 110 A.D.3d 746, 747, 972 N.Y.S.2d 94 ; People v. Certain, 108 A.D.3d 681, 968 N.Y.S.2d 400 ).
RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.