| People v Daigler |
| 2017 NY Slip Op 02304 [148 AD3d 1685] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Preston S.Daigler, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July14, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thesecond 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 of guilty ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a]).At the time of the plea, defendant waived his right to appeal, and County Court indicated that itwould consider whether to grant him youthful offender status after reviewing a presentenceinvestigation. Prior to sentencing, defense counsel submitted a letter asking the court toadjudicate defendant a youthful offender. The court reviewed the presentence investigation reportand adjourned sentencing to review other materials, including recordings of telephone calls thatdefendant made from the jail prior to pleading guilty, in which he discussed his intent not toabide by the conditions of probation or otherwise alter his ways in the future. The court thereafterdeclined to grant defendant youthful offender status.
Contrary to defendant's initial contention, the record establishes that he knowingly,voluntarily, and intelligently waived the right to appeal (see generally People v Bailey, 137 AD3d 1620, 1621 [2016], lvdenied 27 NY3d 1128 [2016]). Furthermore, because the court discussed the possibility ofadjudicating defendant a youthful offender when he waived the right to appeal, defendant's validwaiver encompasses his challenge to the court's denial of his request at the time of sentencing forsuch an adjudication (cf. People v Weathington [appeal No. 2], 141 AD3d 1173, 1174[2016], lv denied 28 NY3d 975 [2016]; People v Gibson, 134 AD3d 1517, 1518 [2015], lv denied27 NY3d 1069 [2016]). We do not address defendant's contention that his waiver of the rightto appeal is overbroad because that contention "is raised for the first time in defendant's replybrief and thus is not properly before us" (People v Jones, 300 AD2d 1119, 1120 [2002],lv denied 2 NY3d 801 [2004]; see People v Harris, 129 AD3d 1522, 1525 [2015], lv denied27 NY3d 998 [2016]). We have considered defendant's remaining challenges to his waiver ofthe right to appeal and conclude that they are without merit. Consequently, defendant's "validwaiver of the right to appeal . . . forecloses appellate review of [the] sentencingcourt's discretionary decision to deny youthful offender status" to defendant inasmuch as thesentencing court considered such status (People v Pacherille, 25 NY3d 1021, 1024 [2015]).Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Scudder, JJ.