| People v Johnson |
| 2013 NY Slip Op 06197 [109 AD3d 1191] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Stephon Johnson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered February 3, 2010. The judgment convicted defendant, upon his plea of guilty,of robbery 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 ofguilty of robbery in the first degree (Penal Law § 160.15 [3]). We agree withdefendant that his waiver of the right to appeal is invalid because "the minimal inquirymade by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Box, 96 AD3d 1570, 1571 [2012], lvdenied 19 NY3d 1024 [2012] [internal quotation marks omitted]; see People v Hamilton, 49AD3d 1163, 1164 [2008]; People v Brown, 296 AD2d 860, 860 [2002],lv denied 98 NY2d 767 [2002]). Indeed, we are unable to determine based on therecord before us whether the court ensured "that the defendant understood that the rightto appeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty" (People v Lopez, 6NY3d 248, 256 [2006]). Nevertheless, we reject defendant's contention that thecourt abused its discretion in denying his request for youthful offender status (see People v Guppy, 92 AD3d1243, 1243 [2012], lv denied 19 NY3d 961 [2012]; People v Potter, 13 AD3d1191, 1191 [2004], lv denied 4 NY3d 889 [2005]). The court relied on, interalia, the fact that defendant engaged in dangerous gratuitous violence in committing thesubject crime. We decline to exercise our interest of justice jurisdiction to adjudicatedefendant a youthful offender (cf. People v Shrubsall, 167 AD2d 929, 930-931[1990]), and we reject defendant's challenge to the severity of the sentence.Present—Scudder, P.J., Fahey, Sconiers and Valentino, JJ.