| People v Joyner |
| 2017 NY Slip Op 08690 [156 AD3d 725] |
| December 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Hoover Trevoae Joyner, Appellant. |
Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kristen A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.),rendered November 25, 2015, convicting him of criminal possession of a weapon in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant did not validly waive his right to appeal, since the County Court failed todistinguish between the rights automatically forfeited as a consequence of the defendant's plea ofguilty and the separate and distinct right to appeal (see People v Fortier, 130 AD3d 642 [2015]; People v Almonor, 122 AD3d 763[2014]).
Since the defendant's purported waiver of the right to appeal was invalid, his claim that theCounty Court improvidently exercised its discretion in denying him youthful offender treatmentis not precluded (see People vDawkins, 146 AD3d 898, 899 [2017]). Nevertheless, the defendant's claim isunpreserved for appellate review, since he failed to object or to move to withdraw his plea on theground that he was denied youthful offender treatment (see People v Huffman, 47 AD3d 646 [2008]; People v Pinheiro, 44 AD3d 798[2007]; People v Demosthene, 21AD3d 384 [2005]). In any event, the County Court's denial of youthful offender treatmentwas a provident exercise of discretion. Since the defendant was convicted of an armed felonyoffense in which he was the sole participant (see CPL 1.20 [41]; Penal Law§ 265.03 [3]; People vAlston, 145 AD3d 737 [2016]; People v Quinones, 140 AD3d 1693 [2016]), he could only beadjudicated a youthful offender if there existed mitigating circumstances that bore directly uponthe manner in which the crime was committed (see CPL 720.10 [3] [i]). Here, there wereinsufficient mitigating circumstances that bore directly upon the manner in which the crime wascommitted (see People v Keith, 144AD3d 705, 706 [2016]; People vOjeda, 118 AD3d 919 [2014]).
Furthermore, since the defendant's purported waiver of the right to appeal was invalid, it doesnot preclude review of his excessive sentence claim. However, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Dillon, J.P., Cohen, Connolly andChristopher, JJ., concur.