Opinion
2016–00012 S.C.I. No. 280/14
12-13-2017
The PEOPLE, etc., respondent, v. Hoover Trevoae JOYNER, appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered November 25, 2015, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant did not validly waive his right to appeal, since the County Court failed to distinguish between the rights automatically forfeited as a consequence of the defendant's plea of guilty and the separate and distinct right to appeal (see People v. Fortier, 130 A.D.3d 642, 12 N.Y.S.3d 283 ; People v. Almonor, 122 A.D.3d 763, 996 N.Y.S.2d 158 ).
Since the defendant's purported waiver of the right to appeal was invalid, his claim that the County Court improvidently exercised its discretion in denying him youthful offender treatment is not precluded (see People v. Dawkins, 146 A.D.3d 898, 899, 44 N.Y.S.3d 770 ). Nevertheless, the defendant's claim is unpreserved for appellate review, since he failed to object or to move to withdraw his plea on the ground that he was denied youthful offender treatment (see People v. Huffman, 47 A.D.3d 646, 850 N.Y.S.2d 473 ; People v. Pinheiro, 44 A.D.3d 798, 842 N.Y.S.2d 736 ; People v. Demosthene, 21 A.D.3d 384, 798 N.Y.S.2d 918 ). In any event, the County Court's denial of youthful offender treatment was a provident exercise of discretion. Since the defendant was convicted of an armed felony offense in which he was the sole participant (see CPL 1.20[41] ; Penal Law § 265.03[3] ; People v. Alston, 145 A.D.3d 737, 41 N.Y.S.3d 716 ; People v. Quinones, 140 A.D.3d 1693, 34 N.Y.S.3d 294 ), he could only be adjudicated a youthful offender if there existed mitigating circumstances that bore directly upon the manner in which the crime was committed (see CPL 720.10[3][i] ). Here, there were insufficient mitigating circumstances that bore directly upon the manner in which the crime was committed (see People v. Keith, 144 A.D.3d 705, 706, 39 N.Y.S.3d 808 ; People v. Ojeda, 118 A.D.3d 919, 988 N.Y.S.2d 222 ).
Furthermore, since the defendant's purported waiver of the right to appeal was invalid, it does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is without merit.
DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.