Opinion
No. KA 06-01721.
March 14, 2008.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered March 2, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-MC LAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35), defendant contends that his waiver of the right to appeal was not knowingly, intelligently and voluntarily entered. We reject that contention ( see People v Lopez, 6 NY3d 248, 256; People v Winchester, 38 AD3d 1336, 1337, lv denied 9 NY3d 853; People v Gilbert, 17 AD3d 1164, lv denied 5 NY3d 762). The valid waiver by defendant of his right to appeal encompasses his challenge to the severity of the bargained-for sentence ( see Lopez, 6 NY3d at 255; Winchester, 38 AD3d at 1338). Defendant concedes that he failed to request youthful offender treatment at sentencing and, "`[i]n any event[,] given defendant's prior history and the nature of the crime, there is no indication before us that such treatment was warranted'" ( People v Burlew, 261 AD2d 828, 828; see People v Syrell, 42 AD3d 947, 948).