Opinion
2013-06-14
The PEOPLE of the State of New York, Respondent, v. Kenneth L. JONES, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered October 17, 2011. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered October 17, 2011. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10[1] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Luper, 101 A.D.3d 1668, 1668, 955 N.Y.S.2d 788,lv. denied20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535). The valid waiver of the right to appeal, however, does not encompass defendant's contention regarding the denial of his request for youthful offender status because “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” ( People v. Anderson, 90 A.D.3d 1475, 1476, 935 N.Y.S.2d 237,lv. denied18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002). We nevertheless reject defendant's contention that County 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. Session, 38 A.D.3d 1300, 1301, 830 N.Y.S.2d 683,lv. denied8 N.Y.3d 990, 838 N.Y.S.2d 493, 869 N.E.2d 669). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of his sentence ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.