Opinion
877 KA 16–00063
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Storm U. LANG, also known as Storm U.J. Lang, also known as Storm Lang, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, 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 two counts of sexual abuse in the first degree ( Penal Law § 130.65[3] ) and one count of sexual abuse in the second degree (§ 130.60[2] ). Contrary to defendant's contention, his waiver of the right to appeal is valid (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant waived that right "both orally and in writing before pleading guilty, and [County Court] conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. McGrew, 118 A.D.3d 1490, 1490–1491, 987 N.Y.S.2d 539 [4th Dept. 2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] [internal quotation marks omitted] ). While we agree with defendant that the colloquy and written waiver contain improperly overbroad language concerningthe rights waived by defendant, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable" ( People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] [internal quotation marks omitted] ). Defendant's valid waiver of the right to appeal "forecloses appellate review of [the] sentencing court's discretionary decision to deny youthful offender status" ( People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ), even where, as here, there was no mention of youthful offender status during the plea colloquy. To the extent that we have held otherwise (see People v. Mills, 151 A.D.3d 1744, 1745, 57 N.Y.S.3d 298 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Anderson, 90 A.D.3d 1475, 1476, 935 N.Y.S.2d 237 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012] ), those cases should no longer be followed in light of Pacherille.