| People v Facen |
| 2009 NY Slip Op 08657 [67 AD3d 1478] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dorian Facen,Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered August18, 1999. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from three judgments convicting him, collectively, uponhis pleas of guilty of two counts of criminal possession of a controlled substance in the fifthdegree (Penal Law § 220.06 [5]) and one count of criminal possession of a weapon in thethird degree (§ 265.02 [former (4)]). We agree with defendant with respect to each appealthat his waivers of the right to appeal were invalid inasmuch as the record fails to "establish that[he] understood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; seePeople v Moorer, 63 AD3d 1590 [2009]; People v Hendrix, 62 AD3d 1261 [2009],lv denied 12 NY3d 925 [2009]). Thus, his contention that County Court abused itsdiscretion in refusing to adjudicate him a youthful offender is not encompassed by the invalidwaiver (cf. People v Capps, 63 AD3d 1632 [2009]). Nevertheless, we reject defendant'scontention that the court abused its discretion, and we decline to grant his further request that weexercise our interest of justice jurisdiction to adjudicate him a youthful offender (see Peoplev Bell, 56 AD3d 1227 [2008], lv denied 12 NY3d 781 [2009]; People vPotter, 13 AD3d 1191 [2004], lv denied 4 NY3d 889 [2005]).
To the extent that defendant in his brief on appeal addresses the imposition of a period ofpostrelease supervision with respect to appeal No. 2, we note that the period of postreleasesupervision has expired. Because we cannot afford defendant any meaningful relief with respectthereto, we dismiss that part of the appeal from the judgment in appeal No. 2 as moot (seegenerally Matter of Wilson v New York State Dept. of Correctional Servs., 43 AD3d 1227[2007]). Present—Hurlbutt, J.P., Martoche, Smith, Carni and Pine, JJ.