Opinion
2013-07-19
The PEOPLE of the State of New York, Respondent, v. Donte LEE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of gang assault in the second degree (Penal Law § 120. 06), defendant contends that SupremeCourt failed to engage in an adequate colloquy to ensure that his waiver of the right to appeal was knowing and voluntary and that the court erred in denying his request for youthful offender status. “Even assuming, arguendo, that the waiver by defendant of the right to appeal is invalid and thus does not encompass his challenge to the court's refusal to adjudicate him a youthful offender, we nevertheless reject that challenge” ( People v. McClellan, 49 A.D.3d 1201, 1202, 856 N.Y.S.2d 350;see People v. Davis, 84 A.D.3d 1710, 1710, 922 N.Y.S.2d 834,lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95). With regard to defendant's alternative contention that his sentence is unduly harsh and severe, the People correctly concede that defendant's purported waiver of the right to appeal would not encompass that contention in any event, inasmuch as defendant waived the right to appeal before the court advised him of the maximum possible sentence he could receive ( see People v. Allen, 93 A.D.3d 1340, 1341, 941 N.Y.S.2d 434,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206;People v. Farrell, 71 A.D.3d 1507, 1507, 897 N.Y.S.2d 357,lv. denied15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898).We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.