Opinion
877/18 KA 16–00063
12-20-2019
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 (SUSAN C. MINISTERO 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 (SUSAN C. MINISTERO 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 Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Thomas, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545 [2019], revg People v. Lang, 165 A.D.3d 1584, 85 N.Y.S.3d 642 [4th Dept. 2018] ). We previously affirmed a judgment convicting defendant 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] ) and concluded that the waiver of the right to appeal was valid ( Lang, 165 A.D.3d at 1584–1585 ). On appeal, the Court of Appeals determined that the waiver of the right to appeal was involuntarily made and unenforceable inasmuch as County Court mischaracterized the appellate rights waived (Thomas, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op., *6). The Court remitted the matter to us for determination of issues raised but not determined on the appeal ( id. at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, *7 ). We now affirm.
Defendant failed to preserve for our review his contention that the court erred in making a determination on youthful offender status without giving him or defense counsel an opportunity to be heard (see generally People v. Rivera, 111 A.D.3d 1280, 1282, 974 N.Y.S.2d 704 [4th Dept. 2013], lv denied 22 N.Y.3d 1090, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ; People v. Brotz, 108 A.D.3d 1236, 1236, 968 N.Y.S.2d 824 [4th Dept. 2013] ). In any event, defendant's contention is without merit inasmuch as the court complied with CPL 380.50(1). Contrary to defendant's further contention, the court did not abuse its discretion in refusing to grant him youthful offender status (see People v. Abdul–Jaleel, 142 A.D.3d 1296, 1298–1299, 38 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ; People v. Lewis, 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see Abdul–Jaleel, 142 A.D.3d at 1299, 38 N.Y.S.3d 645 ; Lewis, 128 A.D.3d at 1400–1401, 7 N.Y.S.3d 800 ).