Opinion
2019–01761 S.C.I. No. 18-00075
12-08-2021
The PEOPLE, etc., respondent, v. Anthony MARTINEZ, appellant.
Joseph J. Artrip, Cornwall, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass and Alexander J.H. Ochoa of counsel), for respondent.
Joseph J. Artrip, Cornwall, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass and Alexander J.H. Ochoa of counsel), for respondent.
ROBERT J. MILLER, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J.), rendered September 4, 2018, convicting him of sexual abuse in the first degree (three counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal is invalid. During the oral colloquy, the County Court incorrectly suggested that the waiver was an absolute bar to the taking of an appeal, and the written waiver of the right to appeal did not cure the deficiencies in the oral colloquy in that it also mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Perrella, 188 A.D.3d 1263, 1264, 132 N.Y.S.3d 800 ). Accordingly, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive or his contention that the court improvidently exercised its discretion in denying him youthful offender status.
Contrary to the defendant's contention, the record demonstrates that the County Court did consider and make a determination as to whether the defendant should be afforded youthful offender treatment (see CPL 720.20 ; People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). The court was not required to provide the reasons for its determination on the record (see People v. Minemier, 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 ). Moreover, the court providently determined that the interest of justice would not be served by relieving the defendant from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years (see CPL 720.20[1][a] ). Accordingly, the court providently declined to adjudicate the defendant a youthful offender (see People v. Sedeno, 188 A.D.3d 1269, 1270, 132 N.Y.S.3d 875 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MILLER, J.P., DUFFY, IANNACCI and CHRISTOPHER, JJ., concur.