| People v Pacherille |
| 2013 NY Slip Op 03132 [106 AD3d 1136] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Anthony N. Pacherille, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Otsego County(Burns, J.), rendered July 22, 2011, convicting defendant upon his plea of guilty of thecrime of attempted murder in the second degree, and (2) by permission, from an order ofsaid court (Cawley, J.), rendered May 25, 2012, which denied defendant's motionpursuant to CPL 440.20 to set aside the sentence, without a hearing.
Defendant was charged in a four-count indictment with various crimes, includingattempted murder in the first degree as a hate crime, as the result of an incident in whichhe shot a classmate who was an African American. He was 16 years old at the time.Defendant pleaded guilty to attempted murder in the second degree in satisfaction of thecharges and waived his right to appeal. Prior to sentencing, defense counsel requestedthat defendant be sentenced as a youthful offender. County Court (Burns, J.) denied therequest and sentenced defendant, in accordance with the plea agreement, to 11 years inprison to be followed by five years of postrelease supervision. Defendant thereaftermoved to set aside the sentence pursuant to CPL 440.20 and to have the sentencing judgerecuse himself from considering the motion. County Court (Burns, J.) recused himselfand the CPL 440.20 motion was assigned to another judge. County Court (Cawley, J.)ultimately denied the motion. Defendant now appeals from the judgment of convictionand, by permission, from the order denying his CPL 440.20 motion.[*2]
Defendant argues, among other things, thatCounty Court (Burns, J.) abused its discretion in denying his request to be sentenced as ayouthful offender. This argument, however, is foreclosed by his valid waiver of the rightto appeal, the enforceability of which he does not contest (see People v Griffin, 100AD3d 1153, 1154 [2012], lv denied 20 NY3d 1011 [2013]; People v Smith, 93 AD3d955, 956 [2012], lv denied 19 NY3d 977 [2012]; People v Brabham, 83 AD3d1225, 1225 [2011]). Defendant further contends that County Court (Cawley, J.)erroneously denied his CPL 440.20 motion to set aside the sentence as unconstitutionaland illegally imposed. Specifically, he maintains that the sentencing judge was biasedcausing him to sentence defendant as a adult. Our review of the record does not revealbias impacting the sentence and indicates that the sentencing judge properly exercised hisresponsibility at the time of sentencing (see People v Hicks, 98 NY2d 185,188-189 [2002]; People v Farrar, 52 NY2d 302, 306 [1981]). We haveconsidered defendant's remaining arguments and find them to be unpersuasive.
Mercure, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment and orderare affirmed.