| People v Smith |
| 2012 NY Slip Op 01700 [93 AD3d 955] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mazghi Smith,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered December 8, 2010, convicting defendant upon his plea of guilty of the crime of robberyin the first degree.
Defendant was charged in a two-count indictment with robbery in the first degree andburglary in the first degree after he forced his way into the home of the nine-year-old victim'sgrandfather and proceeded to rob the boy of his video game system at knife point. According tothe victim's grandfather, when he tried to intervene, defendant knocked him down and fled thescene with the stolen property. Following defendant's arrest, a plea bargain was negotiatedwhereby he would plead guilty to robbery in the first degree in satisfaction of the indictment,waive his right to appeal and receive a sentence no greater than 2 to 6 years in prison. CountyCourt informed defendant at that time that, while he was unwilling to grant him youthfuloffender status under the circumstances, he would duly consider any application that was made.Defendant then accepted the plea bargain, waived his right to appeal and pleaded guilty torobbery in the first degree in satisfaction of the indictment. At sentencing, the court, afterdenying defendant's application for youthful offender status, imposed a prison term of1
We affirm. Notably, defendant's appeal waiver, the validity of which he does not [*2]dispute (see People v French, 72 AD3d 1397, 1399 [2010], lvdenied 15 NY3d 804 [2010]), forecloses any review of the denial of defendant's request foryouthful offender status (see People v Harrington, 281 AD2d 748, 748-749 [2001], lvdenied 96 NY2d 830 [2001]).[FN*]Turning to defendant's assertion that he was deprived of the effective assistance of counsel, wenote that, "to the extent that [this claim] implicates the voluntariness of his plea, [it] survives hisappeal waiver but is unpreserved for our review because he failed to move to vacate the judgmentof conviction or withdraw his plea" (People v Joyce, 91 AD3d 986, 987 [2012]). In any event, we findno basis to conclude that defendant was not afforded meaningful representation.
Finally, while defendant's contention that his sentence is harsh and excessive is alsoprecluded by his waiver of the right to appeal (see People v Sherman, 91 AD3d 982, 983 [2012]), his contentionthat the sentence is illegal is not (seePeople v Ormsby, 89 AD3d 1244, 1244 [2011]). Nonetheless, our review confirms thathis sentence was legally imposed (see Penal Law § 70.00 [2] [b]; [3] [b]).
Mercure, A.P.J., Lahtinen, Spain and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: To the extent that defendant isarguing that County Court's denial of youthful offender status was the result of amisunderstanding concerning his eligibility, this is not borne out by the record (see People v Romano, 49 AD3d1082 [2008]). Instead, during the plea allocution, the court specifically noted that it wouldentertain an application for such status.