| People v Ficchi |
| 2009 NY Slip Op 05483 [64 AD3d 1195] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph V.Ficchi, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedSeptember 5, 2007. The judgment convicted defendant, upon his plea of guilty, of sexual abusein the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofsexual abuse in the first degree (Penal Law § 130.65 [2]). Defendant failed to preserve forour review his contention that County Court abused its discretion in failing to afford himyouthful offender status, inasmuch as he did not request youthful offender status at the time ofthe plea proceeding or at sentencing (see People v Capps, 63 AD3d 1632 [2009]; People v Fowler, 28 AD3d 1183[2006], lv denied 7 NY3d 788 [2006]). We decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see Fowler, 28 AD3d at1184). Contrary to defendant's contention, "[t]he statute requiring the court to make the[youthful offender] determination is not like those which by their terms, indicate it is the court'sresponsibility to alert the defendant or his lawyer to his rights or the detriment he may suffer"(People v McGowen, 42 NY2d 905, 906 [1977], rearg denied 42 NY2d 1015[1977]; see People v Cunningham, 238 AD2d 350 [1997], lv denied 90 NY2d857 [1997]). Present—Smith, J.P., Fahey, Carni, Pine and Gorski, JJ.