| People v Lyons |
| 2011 NY Slip Op 05769 [86 AD3d 930] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamel Lyons,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedDecember 8, 2009. The judgment convicted defendant, upon his plea of guilty, of robbery in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robberyin the first degree (Penal Law § 160.15 [4]), defendant contends that his waiver of the rightto appeal was invalid. We reject that contention. Despite defendant's contention to the contrary,the record "establish[es] that [he] understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Graham, 77 AD3d1439 [2010], lv denied 15 NY3d 920 [2010]). Defendant further contends that hiswaiver of the right to appeal is invalid and unenforceable because the plea "agreement wascoercive and it did not contain any favorable terms for" him. Although defendant is correct to theextent that he may be construed to contend that County Court was required to inform him of thesentencing range before he waived his right to appeal (see People v Hidalgo, 91 NY2d733, 737 [1998]; People v Bryan, 78AD3d 1692 [2010], lv denied 16 NY3d 829 [2011]), the record establishes that thecourt did so. Furthermore, the record belies defendant's contention that the plea agreement was"coercive and did not contain any favorable terms for" him. Indeed, the court promised toadjudicate defendant a youthful offender if he complied with certain conditions between the timeof the plea and the time of sentencing, which would have reduced defendant's maximum term ofincarceration if he had complied with the conditions set by the court, although the recordestablishes that defendant failed to do so. We have considered defendant's remaining contentionsconcerning the alleged invalidity of his waiver of the right to appeal and conclude that they arewithout merit. "The valid waiver of the right to appeal encompasses defendant's contentionconcerning the [ultimate] denial of his request for youthful offender status" (People v Elshabazz, 81 AD3d1429, 1429 [2011], lv denied 16 NY3d 858 [2011]; see People v Capps, 63 AD3d1632, [2009] lv denied 13 NY3d 795 [2009]; People v Porter, 55 AD3d 1313 [2008], lv denied 11 NY3d899 [2008]), as well as his contention concerning the severity of his sentence (see Lopez,6 NY3d at 256; People vVanDeViver, 56 AD3d 1118, 1119 [2008], lv denied 11 NY3d 931 [2009],reconsideration denied 12 NY3d 788 [2009]). Present—Scudder, P.J., Smith,Carni, Green and Martoche, JJ.