| People v Simon |
| 2016 NY Slip Op 05191 [140 AD3d 1533] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kyle E. Simon, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Marquetta Christy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 12, 2014, convicting defendant upon his plea of guilty ofthe crime of attempted rape in the second degree.
Defendant pleaded guilty to the reduced charge of attempted rape in the seconddegree and waived his right to appeal. County Court agreed to place defendant on interimprobation for one year, at which point the court would consider youthful offender statusand impose a sentence. Prior to the sentencing date, the Probation Department submitteda notification of violation of interim probation which, among other things, detailedvarious alleged violations of conditions of interim probation by defendant, including hispositive test result for alcohol use, failure to report to probation and leaving thejurisdiction without permission. Thereafter, County Court found that defendant failed tocomply with all the terms of his interim probation, declined to adjudicate him a youthfuloffender and sentenced him to six months in jail followed by 10 years of probation.Defendant appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal wasvalid (see People vMcKenzie, 136 AD3d 1120, 1121 [2016], lv denied 27 NY3d 1002[2016]). The record reflects that County Court advised defendant that the waiver of theright to appeal was separate and distinct from those rights forfeited by his guilty plea.Furthermore, defendant acknowledged that he understood the nature of the waiver of theright to appeal, discussed its consequences with his attorney and executed a detailedwritten waiver in open court. As such, [*2]defendant'svalid waiver of appeal precludes his contentions that County Court abused its discretionin declining to treat him as a youthful offender (see People v Roberts, 134 AD3d 1352, 1352 [2015]; People v Wright, 123 AD3d1241, 1241 [2014]) and that the sentence imposed was harsh and excessive (see People v Brasmeister, 136AD3d 1122, 1123 [2016], lv denied 27 NY3d 993 [2016]).
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.