| People v Daniels |
| 2016 NY Slip Op 03915 [139 AD3d 1256] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJayvon Daniels, Appellant. |
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 9, 2014 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the second degree.
Following a high speed police chase of a vehicle in which defendant was apassenger, defendant threw a loaded firearm off a bridge as he fled from the police. As aresult, an indictment was handed up charging defendant with criminal possession of aweapon in the second degree. After several plea conferences, defendant pleaded guilty tothis charge as part of an agreement that required a waiver of appeal, in exchange for apromised sentence of no more than nine years in prison followed by five years ofpostrelease supervision. In accordance with the plea agreement, defendant was sentencedto a prison term of 8
Initially, while defendant's challenge to the voluntariness of his guilty plea surviveshis waiver of the right to appeal, the record does not reflect that he preserved thischallenge by making an appropriate postallocution motion to withdraw his plea(see CPL 220.60 [3]; People v Burritt, 127 AD3d 1433, 1434 [2015]). Nor doesthe transcript of the plea allocution reflect that he made any statements that triggered thenarrow exception to the preservation requirement (see People v Lopez, 71 NY2d662, 664-665 [1988]; People vBroomfield, 128 AD3d 1271, 1271-1272 [2015], lv denied 26 NY3d1086 [2015]). In any event, a review of the plea allocution [*2]demonstrates that defendant was adequately informed ofthe terms of the agreement and the trial-related rights that he was forgoing, and that heunderstood the consequences of his plea, including that he would receive a prisonsentence of no more than nine years. Contrary to his claims, he expressly indicated thathe had sufficient time to discuss the plea as well as the proof against him and possibledefenses with counsel, understood what he was doing, was pleading guilty of his ownfree will and because he was in fact guilty, and unequivocally admitted the chargedconduct. Thus, even if we were to address the issue, we would find that the recordestablishes that he made a "knowing, voluntary and intelligent choice among alternativecourses of action" (People vConceicao, 26 NY3d 375, 382 [2015]; see People v Fiumefreddo, 82NY2d 536, 543 [1993]; Peoplev Taylor, 135 AD3d 1237, 1237 [2016]). To the extent that he raises claimsregarding what counsel investigated or discussed with him, they concern matters that areoutside the record on appeal and are more properly suited for a CPL article 440 motion(see People v Taylor, 135 AD3d at 1237).
Moreover, the record discloses that defendant's combined oral and written waiver ofappeal was valid (see People vLopez, 6 NY3d 248, 256 [2006]). Supreme Court explained that it was separateand distinct from the rights forfeited by the guilty plea. After being advised to sign thewritten appeal waiver only if he understood and agreed to it and after reviewing it withcounsel in court, defendant signed it acknowledging that counsel had informed him of itsconsequences (see People vSawyer, 135 AD3d 1164, 1165 [2016]; People v Ortiz, 127 AD3d 1416, 1416-1417 [2015], lvdenied 26 NY3d 1010 [2015]). Accordingly, defendant's challenge to the sentence asharsh and excessive is precluded by his valid appeal waiver (see People v Lopez,6 NY3d at 256; People v Taylor, 135 AD3d at 1237).
However, defendant was a 17-year-old "youth" at the time of this crime (CPL 1.20[42]; 720.10 [1]) and, notwithstanding the fact that he was convicted of an armed felony(see CPL 1.20 [41]; 720.10 [2] [a] [ii]; [3]), he was entitled to a determination onthe record by Supreme Court as to whether he was an "eligible youth" due to theexistence or absence of mitigating circumstances or other factors set forth in CPL 720.10(3) and, if so, whether such treatment should be granted (see People v Middlebrooks, 25NY3d 516, 525-528 [2015]; see also CPL 720.10 [2]; 720.20 [1]).[FN*] The sentencing court didnot expressly consider this issue on the record and, thus, remittal for this determination isrequired despite the fact that defendant did not request youthful offender treatment andwaived his right to appeal (seePeople v Pacherille, 25 NY3d 1021, 1023 [2015]; People vMiddlebrooks, 25 NY3d at 527-528; People v Rudolph, 21 NY3d 497, 499-501 [2013]; People v Fields, 133 AD3d529, 530 [2015], lv denied 26 NY3d 1145 [2016]; cf. People v Clark, 135 AD3d1239, 1240 [2016]).
Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the SupremeCourt for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote *:The record does notestablish that defendant was previously convicted of a felony or adjudicated a youthfuloffender following a conviction for a felony or that any other statutory exception appliesso as to preclude youthful offender treatment (see CPL 720.10 [2] [b], [c]).Defendant's prior conviction in Troy City Court for which he was adjudicated a youthfuloffender was based upon a guilty plea to criminal possession of a weapon in the fourthdegree, a class A misdemeanor (see Penal Law § 265.01).