| People v Rahim |
| 2010 NY Slip Op 07834 [78 AD3d 1240] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Zareif Rahim,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered July 27, 2009, convicting defendant upon his plea of guilty of the crime of criminal possessionof a weapon in the second degree (two counts).
Waiving his right to appeal, defendant pleaded guilty to possessing a loaded .40 calibersemi-automatic pistol with the understanding that his sentence would not exceed 3½ years inprison and County Court would consider granting youthful offender status. Ultimately, County Courtdeclined to adjudicate defendant a youthful offender and imposed a prison term of 3½ years withthree years of postrelease supervision. Defendant appeals and we affirm.
Defendant contends that County Court's determination to deny youthful offender status wasimproperly based upon the disputed allegations by the prosecutor at sentencing that, when the pistolwas seized by the police, there was a shell in its chamber and the weapon's safety was off. Defendantargues that County Court should have held a hearing to resolve the dispute prior to determining hisyouthful offender status. This issue is unpreserved, however, due to defendant's failure to request ahearing at the time of sentencing (see CPL 470.05 [2]; People v Delayo, 52 AD3d 1114, 1115 [2008], lv denied 11NY2d 787 [2008]). In any event, review is precluded by defendant's valid bargained-for waiver ofappeal because his claim is a challenge to the procedures utilized in determining the sentence and doesnot implicate the legality of the [*2]sentence or the power of the courtto impose it (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Platero, 63 AD3d 1446[2009], lv denied 13 NY3d 861 [2009]; People v Dillon, 61 AD3d 1221, 1221-1222 [2009], lv denied14 NY3d 840 [2010]; People v Hooten,34 AD3d 941 [2006]; People vGriffin, 17 AD3d 927, 927 [2005]; People v Hicks, 201 AD2d 831, 832 [1994],lv denied 83 NY2d 911 [1994]).
Finally, defendant's request that we exercise our interest of justice jurisdiction to grant youthfuloffender status is barred by his valid appeal waiver (see People v Cullen, 62 AD3d 1155, 1157 [2009], lv denied 13NY3d 795 [2009]; People v Rosseter,62 AD3d 1093, 1095 [2009]; People vBaker, 6 AD3d 751 [2004]).
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.