| People v Gibson |
| 2015 NY Slip Op 09726 [134 AD3d 1517] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGerald Gibson, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered March 17, 2009. The appeal was held by this Court by order enteredNovember 14, 2014, decision was reserved and the matter was remitted to SupremeCourt, Erie County, for further proceedings (122 AD3d 1331 [2014]). The proceedingswere held and completed.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of attempted assault in the second degree (Penal Law§§ 110.00, 120.05 [2]) and, in appeal No. 2, he appeals from ajudgment convicting him upon his plea of guilty of manslaughter in the first degree(§ 125.20). We previously held the cases, reserved decision, and remittedthe matters to Supreme Court to determine whether to adjudicate defendant a youthfuloffender in both matters (People v Gibson, 122 AD3d 1331, 1332 [2014]; People v Gibson, 122 AD3d1332 [2014]). Upon remittal, the court declined to adjudicate defendant a youthfuloffender, and we now affirm.
Initially, we note that "no mention was made on the record during the course of theallocution concerning the waiver of defendant's right to appeal his conviction that he wasalso waiving his right to appeal the harshness of his sentence" and the determination todeny him youthful offender status (People v Pimentel, 108 AD3d 861, 862 [2013], lvdenied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Anderson, 90AD3d 1475, 1476 [2011], lv denied 18 NY3d 991 [2012]). Thus,defendant's waiver of the right to appeal does not encompass his challenge to the severityof the sentence and the denial of youthful offender status (see People v Avellino, 119AD3d 1449, 1449-1450 [2014]; Anderson, 90 AD3d at 1476). Contrary todefendant's contention in these appeals following remittal, however, we conclude that thesentence in each appeal is not unduly harsh or severe, and we further conclude that thecourt did not abuse its discretion in declining to adjudicate him a youthful offender (see People v Guppy, 92 AD3d1243, 1243 [2012], lv denied 19 NY3d 961 [2012]). Furthermore, wedecline to exercise our interest of justice jurisdiction to adjudicate defendant a youthfuloffender (cf. People v Shrubsall, 167 AD2d 929, 930-931 [1990]). The recordestablishes that two separate violent incidents were involved, one in which defendantaided a codefendant who stabbed the victim and inflicted serious injuries, and the otherin which defendant killed a different young man with whom he had been feuding formonths. In the latter incident, defendant took the handgun away from another participantin the crime who was refusing to shoot the victim and shot the victim himself.Present—Scudder, P.J., Smith, Peradotto and Carni, JJ.