| People v Anderson |
| 2011 NY Slip Op 09364 [90 AD3d 1475] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GeraldAnderson, Appellant. |
—[*1] Gerald Anderson, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered October 18, 2007. The judgment convicted defendant, upon his plea of guilty, ofmanslaughter in 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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]). Contrary to defendant'scontention, his waiver of the right to appeal was knowingly, intelligently, and voluntarily entered(see People v Graham, 77 AD3d1439 [2010], lv denied 15 NY3d 920 [2010]; see generally People v Lopez, 6 NY3d 248, 256 [2006]). We agreewith defendant, however, that the waiver does not encompass his further contention concerningthe denial of his request for youthful offender status. No mention of youthful offender status wasmade before defendant waived his right to appeal during the plea colloquy. Under thosecircumstances, we conclude that defendant did not knowingly waive his right to appeal withrespect to Supreme Court's denial of the request by defendant for youthful offender status atsentencing (see generally People vMcCarthy, 83 AD3d 1533 [2011], lv denied 17 NY3d 819 [2011]; People vFehr, 303 AD2d 1039 [2003], lv denied 100 NY2d 538 [2003]; People vHendricks, 270 AD2d 944 [2000]). We reject defendant's contention that the court abused itsdiscretion in denying his request for youthful offender status, however, and we decline toexercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v Jock, 68 AD3d 1816[2009], lv denied 14 NY3d 801 [2010]).
Defendant failed to preserve for our review his challenge to the factual sufficiency of the pleaallocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Moorer, 63 AD3d 1590[2009], lv denied 13 NY3d 837 [2009]), and this case does not fall within the rareexception to the preservation requirement (see Lopez, 71 NY2d at 666). Defendant"waived his right to appeal before [the court] advised him of the potential periods ofimprisonment that could be imposed," and thus his challenge to the severity of the sentence alsois not encompassed by the waiver of the right to appeal (People v Mingo, 38 AD3d 1270, 1271 [2007]; see People v Martinez, 55 AD3d1334 [2008], lv denied 11 NY3d 927 [2009]). We conclude, however, that thesentence is not unduly harsh or severe.[*2]
The remainder of defendant's contentions are raised in hispro se supplemental brief. He contends that his statement to the police should have beensuppressed because there was no Miranda waiver and no probable cause for the arrest,and because he requested but was not afforded counsel before making the statement. There is noshowing in the record, however, that defendant moved to suppress his statement and, even if hehad so moved, the valid waiver of the right to appeal would have encompassed any suppressionruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Schenk, 77 AD3d 1417[2010], lv denied 15 NY3d 924 [2010], reconsideration denied 16 NY3d 836[2010]). In addition, by pleading guilty, defendant forfeited his contention that he was denied afair trial by preindictment prosecutorial misconduct, i.e., the prosecutor's failure to notify him ofthe grand jury proceeding and the prosecutor's defective grand jury instructions (see People v Oliveri, 49 AD3d1208, 1209 [2008]).
Next, we reject defendant's contention that the felony complaint was defective. The felonycomplaint was superseded by the indictment to which defendant pleaded guilty, and he thereforemay not challenge the felony complaint (see People v Black, 270 AD2d 563, 564-565[2000]). Although defendant also contends that the evidence before the grand jury was legallyinsufficient, we note that defendant's contention is foreclosed by virtue of his guilty plea (seePeople v Hansen, 95 NY2d 227, 233 [2000]). Finally, to the extent that defendant'scontention that he was denied effective assistance of counsel survives his guilty plea and validwaiver of the right to appeal (see Peoplev Jackson, 85 AD3d 1697, 1699 [2011]), that contention lacks merit (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). We have reviewed the remaining contentions indefendant's pro se supplemental brief and conclude that they are without merit.Present—Scudder, P.J., Smith, Centra, Green and Gorski, JJ.