People v Givens

2007 NYSlipOp 00089

January 9, 2007

Appellate Division, First Department

As corrected through Wednesday, March 14, 2007

The People of the State of New York, Respondent, v Terene Givens, Appellant.

—[*1]Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marissa K. Gould of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered September 28, 2005, convicting defendant, upon his plea of guilty, of attempted murder in the second degree, and sentencing him to a term of seven years, unanimously affirmed.

At the first of two plea proceedings, defendant made a valid waiver of his right to appeal as part of his plea agreement (see People v Lopez, 6 NY3d 248, 255-256 [2006]), and, as defendant expressly acknowledged, the second proceeding incorporated by reference the entire prior allocution. Accordingly, defendant's waiver forecloses his present claims that his sentence was excessive and that the court should have granted him youthful offender treatment. Were we to find that defendant did not make an enforceable waiver, we would reject both arguments on the merits (see People v Callahan, 80 NY2d 273, 285 [1992]). Concur—Tom, J.P., Friedman, Nardelli, Catterson and Malone, JJ.