Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Maxwell B. MOHAWK, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for defendant-appellant. Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), rendered July 1, 2013. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for defendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10[1] ). As a preliminary matter, we agree with defendant that “ ‘the waiver of the right to appeal is invalid because the minimal inquiry made by [County Court] was insufficient to establish that the court engage[d him] in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Benson, 141 A.D.3d 1171, 1172, 35 N.Y.S.3d 624 ; see People v. Cooper, 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481, lv. denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 ). Defendant contends that the court abused its discretion in refusing to grant him youthful offender status. We note that we would address that contention even in the presence of a valid waiver of the right to appeal because the issue was specifically excluded from the purported waiver (see People v. Johnson, 50 A.D.3d 1567, 1567, 855 N.Y.S.2d 401 ). We nonetheless conclude that defendant's contention is without merit. The court properly considered the gravity of the offense, i.e., defendant shot the victim multiple times in the upper torso, which caused serious, life-threatening injuries, as well as defendant's lack of remorse (see People v. Gibson, 134 A.D.3d 1517, 1518–1519, 21 N.Y.S.3d 905, lv. denied 27 N.Y.3d 1069, 38 N.Y.S.3d 839, 60 N.E.3d 1205 ; People v. Driggs, 24 A.D.3d 888, 889, 804 N.Y.S.2d 703 ). Furthermore, upon our review of the record, we see no reason to exercise our own discretion in the interest of justice to adjudicate defendant a youthful offender (cf. People v. Amir W., 107 A.D.3d 1639, 1640–1641, 969 N.Y.S.2d 289 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, and TROUTMAN, JJ., concur.