| People v Dancy |
| 2017 NY Slip Op 08681 [156 AD3d 717] |
| December 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jamir Dancy, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(McLoughlin, J.), rendered July 27, 2016, convicting him of attempted criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his plea was not knowing, voluntary, and intelligent because theCounty Court failed to advise him of the constitutional rights he was waiving by pleading guilty.This contention is unpreserved for appellate review, because the defendant did not move tovacate his plea or otherwise raise the issue in the County Court (see CPL 220.60 [3]; People v Peque, 22 NY3d 168, 182[2013]; People v Clarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d662, 665-666 [1988]; People vColeman, 138 AD3d 1014, 1015 [2016]; People v Jackson, 114 AD3d 807 [2014]; cf. People v Tyrell, 22 NY3d 359[2013]). In any event, this contention is without merit. The court adequately advised thedefendant of his fundamental constitutional rights, as well as other rights, he was surrendering bypleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]), and the recordaffirmatively demonstrates the defendant's understanding and waiver of these rights, and theentry of a knowing, voluntary, and intelligent plea of guilty (see People v Harris, 61NY2d 9, 19-20 [1983]; People vSirico, 135 AD3d 19, 22 [2015]; cf. People v Tyrell, 22 NY3d 359 [2013]).
The defendant's valid waiver of his right to appeal (see People v Sanders, 25 NY3d 337, 339, 341-342 [2015]; People v Lopez, 6 NY3d 248, 254,257 [2006]) precludes review of his claim that he was deprived of the effective assistance ofcounsel except to the extent that the alleged ineffective assistance may have affected thevoluntariness of his plea (see People vRodriguez, 144 AD3d 950 [2016]; People v Upson, 134 AD3d 1058 [2015]). To the extent that thedefendant's ineffective assistance of counsel claim survives his valid waiver of the right toappeal, the claim is without merit (seePeople v Caban, 5 NY3d 143, 152 [2005]; People v Ford, 86 NY2d 397, 404[1995]; People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant contends that the County Court erred in not affording him youthful offenderstatus. A youth otherwise eligible to be classified as a youthful offender is ineligible for youthfuloffender treatment if he or she has previously been convicted of and sentenced on a felony(see CPL 720.10 [2] [b]). "This restriction, relating to the eligible youth determination, isapplicable at the time of conviction" (People v Cecil Z., 57 NY2d 899, 901 [1982]). Here,at the time the defendant pleaded guilty to attempted criminal possession of a weapon in thesecond degree, he had previously been convicted of and sentenced on a drug felony. Accordingly,the court properly determined that the defendant was not an "[e]ligible youth" and declined togrant him youthful offender status (CPL 720.10 [2] [b]).
The defendant's valid waiver of his right to appeal precludes review of his contention that thesentence imposed was excessive (see People v Seaberg, 74 NY2d 1, 11 [1989]). Rivera,J.P., Austin, Roman, Hinds-Radix and Connolly, JJ., concur.