| People v Joyce |
| 2012 NY Slip Op 00057 [91 AD3d 986] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnJoyce, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.),rendered November 20, 2010, convicting defendant upon his plea of guilty of the crime ofrobbery in the second degree.
Defendant waived indictment and was charged with one count of robbery in the seconddegree in a superior court information. Defendant pleaded guilty to that charge and waived hisright to appeal and was thereafter sentenced in accordance with the plea agreement, as relevanthere, to seven years in prison to be followed by five years of postrelease supervision. Defendantappeals.
We affirm. Initially, taking into consideration all of the relevant facts and circumstancessurrounding defendant's appeal waiver—including his age—we find that the waiverwas knowing, intelligent and voluntary (see People v Romano, 45 AD3d 910, 914 [2007], lv denied10 NY3d 770 [2008]). The record demonstrates that County Court adequately explained theterms of the plea, including that defendant was waiving his right to appeal separately from thoseother rights that he was forfeiting, the written appeal waiver was completed in open court anddefendant stated that he discussed the waiver of appeal and its consequences with his counsel.Therefore, defendant validly waived his right to appeal (see People v Moreno, [*2]86 AD3d 863, 864 [2011]; People v Jean-Francois, 82 AD3d 1366, 1366 [2011], lvdenied 17 NY3d 797 [2011]; Peoplev Rosseter, 62 AD3d 1093, 1094 [2009]).
While defendant contends that County Court erred in failing to consider him for youthfuloffender status, we note that defendant never requested it (see People v Rudolph, 85 AD3d 1492, 1492-1493 [2011]; People v Hubbard, 74 AD3d 1580,1581 [2010]; People v Hopper, 39AD3d 1030, 1031 [2007]) and, moreover, his claim that youthful offender status should beimposed is barred by his valid appeal waiver (see People v Benson, 87 AD3d 1228, 1229 [2011]; People v Brabham, 83 AD3d1225, 1225 [2011]). Defendant's claim of ineffective assistance of counsel, to the extent thatit implicates the voluntariness of his plea, survives his appeal waiver but is unpreserved for ourreview because he failed to move to vacate the judgment of conviction or withdraw his plea (see People v Planty, 85 AD3d1317, 1318 [2011], lv denied 17 NY3d 820 [2011]). Finally, his claim that thesentence given was harsh and excessive is foreclosed by his valid waiver of appeal (seePeople v Moreno, 86 AD3d at 864; People v Shurock, 83 AD3d 1342, 1344 [2011]).
Mercure, A.P.J., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.