| People v Rudolph |
| 2011 NY Slip Op 05590 [85 AD3d 1492] |
| June 30, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ReeceRudolph, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered July 2, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of acontrolled substance in the third degree in satisfaction of a five-count indictment. The terms ofthe plea agreement provided that defendant would be sentenced to a determinate prison sentenceof as few as two and as many as nine years to be followed by two years of postreleasesupervision, depending upon his level of cooperation with the authorities and compliance withthe terms of his release between the plea and sentencing date. A recommendation of participationin a shock incarceration or comprehensive alcohol and substance abuse treatment program wasalso contemplated by the plea agreement. Defendant was ultimately sentenced to five years inprison and two years of postrelease supervision, with a recommendation for the comprehensivealcohol and substance abuse treatment program. Defendant now appeals.
Defendant contends that County Court should have considered him for youthful offenderstatus and that counsel's failure to pursue youthful offender treatment at sentencing rendered hisassistance ineffective. It is clear from the record that at the time defendant entered [*2]into the negotiated plea agreement, he was aware that it did notinclude youthful offender treatment. Additionally, the presentence investigation report indicatedthat defendant would potentially be a candidate for youthful offender treatment but made norecommendation in that respect. Defendant subsequently waived his right to be considered foryouthful offender treatment by failing to make a request for such consideration (see People v Wise, 29 AD3d 1216,1217 [2006], lv denied 7 NY3d 852 [2006]; People v Howard, 1 AD3d 718, 719 [2003]; People vGregory, 290 AD2d 810, 811-812 [2002], lv denied 98 NY2d 675 [2002]). Undersuch circumstances, County Court was not required to address the issue at sentencing (see People v Hopper, 39 AD3d1030, 1031 [2007]).
Because defendant's claim of ineffective assistance of counsel "does not impact on thevoluntariness of his plea, it is not properly before us due to his [valid] waiver of appeal"(People v Wise, 29 AD3d at 1216; see People v Howard, 1 AD3d at 719).
Peters, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.