| People v Simmons |
| 2018 NY Slip Op 02211 [159 AD3d 1270] |
| March 29, 2018 |
| Appellate Division, Third Department |
[*1](March 29, 2018)
| The People of the State of New York, Respondent, v NaseirSimmons, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 16,2015 in Albany County, convicting defendant upon his plea of guilty of the crime of assault inthe first degree.
Defendant, who was 16 when he shot the victim in the stomach with a firearm, pleaded guiltyto assault in the first degree and waived his right to appeal. Supreme Court denied defendantyouthful offender status and sentenced him to a prison term of 10 years, followed by five years ofpostrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, defendant's waiver of the right to appeal wasvalid. The record reflects that Supreme Court explained that the waiver of the right to appeal wasseparate from the rights forfeited by the guilty plea, and defendant indicated that he understood.Further, after being given an opportunity to confer with counsel, defendant acknowledged that hefully understood the written waiver of appeal and executed it in open court. Despite defendant'sage, we find that the record reflects that he entered a knowing, voluntary and intelligent waiver ofhis right to appeal (see People vLopez, 6 NY3d 248, 256-257 [2006]; People v Simon, 140 AD3d 1533, 1534 [2016]; People v Hernandez, 140 AD3d1521, 1522 [2016], lv denied 28 NY3d 971 [2016]).
Defendant's contention that Supreme Court improperly denied him youthful offendertreatment is foreclosed by the valid waiver of the right to appeal (see People v Pacherille,25 [*2]NY3d 1021, 1023-1024 [2015]; People v Caggiano, 150 AD3d1335, 1336 [2017], lv denied 29 NY3d 1124 [2017]; People v Fate, 117 AD3d 1327,1329 [2014], lv denied 24 NY3d 1083 [2014]). We note that a valid appeal waiver willnot preclude appellate review in the narrow instance where "a sentencing court has entirelyabrogated its responsibility to determine whether an eligible youth . . . is entitled toyouthful offender status" (People v Pacherille, 25 NY3d at 1023, citing CPL 720.10 [1],[2]). Here, the court expressly denied youthful offender treatment, finding it to be inappropriate.From this record, we conclude that Supreme Court fully considered and rejected the statutoryoverride provisions of CPL 720.10 (3) (see People v Minemier, 29 NY3d 414, 421 [2017]; compare People v Martz, 158 AD3d991, 992-993 [2018]). To the extent that defendant contends that the sentence is harsh andexcessive, such challenge is also precluded by the valid appeal waiver (see People vLopez, 6 NY3d at 256; People vPixley, 150 AD3d 1555, 1557 [2017], lv denied 30 NY3d 952 [2017]).
Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.