Opinion
2013-09-27
The PEOPLE of the State of New York, Respondent, v. Stephon JOHNSON, Defendant–Appellant.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered February 3, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree. Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered February 3, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[3] ). We agree with defendant that his waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Box, 96 A.D.3d 1570, 1571, 946 N.Y.S.2d 525,lv. denied19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted]; see People v. Hamilton, 49 A.D.3d 1163, 1164, 856 N.Y.S.2d 375;People v. Brown, 296 A.D.2d 860, 860, 745 N.Y.S.2d 368,lv. denied98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919). Indeed, we are unable to determine based on the record before us whether the court ensured “ that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Nevertheless, we reject defendant's contention that the court abused its discretion in denying his request for youthful offender status ( see People v. Guppy, 92 A.D.3d 1243, 1243, 937 N.Y.S.2d 921,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211;People v. Potter, 13 A.D.3d 1191, 1191, 786 N.Y.S.2d 793,lv. denied4 N.Y.3d 889, 798 N.Y.S.2d 735, 831 N.E.2d 980).The court relied on, inter alia, the fact that defendant engaged in dangerous gratuitous violence in committing the subject crime. We decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender ( cf. People v. Shrubsall, 167 A.D.2d 929, 930–931, 562 N.Y.S.2d 290), and we reject defendant's challenge to the severity of the sentence.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.