Opinion
885 KA 20-00262
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Tommy HALL, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, OGDEN, AND NOWAK, 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 manslaughter in the first degree ( Penal Law § 125.20 [1] ). We affirm. Initially, as defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid because Supreme Court "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( 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 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] ; People v. Jackson , 207 A.D.3d 1077, 1077-1078, 169 N.Y.S.3d 556 [4th Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ).
To the extent that defendant's contention that he was denied effective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacks merit (see People v. Smith , 144 A.D.3d 1547, 1548, 40 N.Y.S.3d 330 [4th Dept. 2016] ). Here, " ‘[d]efendant was sentenced in accordance with the plea agreement, and any alleged deficiencies in defense counsel's representation at sentencing do not constitute ineffective assistance’ " ( People v. Gregg , 107 A.D.3d 1451, 1452, 965 N.Y.S.2d 908 [4th Dept. 2013] ; see Smith , 144 A.D.3d at 1548, 40 N.Y.S.3d 330 ; see generally People v. Rivera , 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).
We further conclude that the court did not abuse its discretion in declining to adjudicate defendant a youthful offender, particularly in view of the serious nature of the crime (see People v. Graham , 218 A.D.3d 1359, 1360, 194 N.Y.S.3d 857 [4th Dept. 2023] ; see generally People v. McCall , 187 A.D.3d 1682, 1683, 132 N.Y.S.3d 225 [4th Dept. 2020], lv denied 36 N.Y.3d 930, 135 N.Y.S.3d 343, 159 N.E.3d 1110 [2020] ; People v. Lester , 167 A.D.3d 1559, 1560, 91 N.Y.S.3d 643 [4th Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 219, 122 N.E.3d 1132 [2019]). 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 that status (see 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, the sentence is not unduly harsh or severe.