| People v McGrew |
| 2014 NY Slip Op 04663 [118 AD3d 1490] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vThomas E. McGrew, Jr., Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedApril 25, 2013. The judgment convicted defendant, upon his plea of guilty, of attemptedcourse of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted course of sexual conduct against a child in the second degree (Penal Law§§ 110.00, 130.80 [1] [a]), defendant contends that his waiver of theright to appeal was invalid because it was not knowing, voluntary and intelligent, andthat County Court abused its discretion in denying his request to adjudicate him ayouthful offender.
Initially, we reject the People's contention that defendant was required to preserve forour review his challenge to the voluntariness of his waiver of the right to appeal (see People v Lopez, 52 AD3d852, 853 [2008]; People vHoover, 37 AD3d 298, 299-300 [2007]). Contrary to defendant's contention,however, the record establishes that his waiver was valid. Defendant waived his right toappeal both orally and in writing before pleading guilty, and the court conducted" 'an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice' " (People v Glasper, 46 AD3d 1401, 1401 [2007], lvdenied 10 NY3d 863 [2008]; see People v Korber, 89 AD3d 1543, 1543 [2011], lvdenied 19 NY3d 864 [2012]). Moreover, the record demonstrates that" 'defendant understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty' " (People v Jones, 96 AD3d1637, 1637 [2012], lv denied 19 NY3d 1103 [2012]). Defendant's validwaiver of the right to appeal encompasses his contention that the court abused itsdiscretion in denying his request for youthful offender status (see People v Johnson, 111AD3d 1391, 1391 [2013]; People v Rush, 94 AD3d 1449, 1449-1450 [2012], lvdenied 19 NY3d 967 [2012]; People v Farewell, 90 AD3d 1502, 1502 [2011], lvdenied 18 NY3d 957 [2012]). Present—Smith, J.P., Centra, Carni, Whalenand DeJoseph, JJ.