Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Edgar MILLS, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of robbery in the second degree ( Penal Law § 160.10[2][a] ). We reject defendant's contention that the waiver of the right to appeal is invalid. Contrary to defendant's contention, Supreme Court "did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea" ( People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Moreover, the court engaged defendant "in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Burt, 101 A.D.3d 1729, 1730, 955 N.Y.S.2d 906, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 [internal quotation marks omitted] ). Defendant's valid waiver of the right to appeal, which specifically included a waiver of the right to challenge the severity of the sentence, encompasses his contention that the sentence imposed is unduly harsh and severe (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ).
Inasmuch as "no mention of youthful offender status was made on the record before defendant waived his right to appeal, ... defendant's valid waiver does not encompass his challenge to the court's denial of youthful offender status" ( People v. Weathington [appeal No. 2], 141 A.D.3d 1173, 1174, 34 N.Y.S.3d 859 ; see People v. Matsulavage, 121 A.D.3d 1581, 1581, 993 N.Y.S.2d 423, lv. denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 ). We nonetheless conclude that the court did not abuse its discretion in refusing to grant defendant youthful offender status (see People v. Ford, 144 A.D.3d 1682, 1683, 42 N.Y.S.3d 491, lv. denied 28 N.Y.3d 1184, 43 N.Y.S.3d 262, 66 N.E.3d 8), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see Matsulavage, 121 A.D.3d at 1581, 993 N.Y.S.2d 423 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.