| People v McEachern |
| 2018 NY Slip Op 05335 [163 AD3d 850] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric McEachern, Appellant. |
Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross ofcounsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Neil JonFiretog, J.), imposed February 7, 2017, upon his conviction of manslaughter in the first degree,upon his plea of guilty, after remittitur from this Court for resentencing (see People v McEachern, 145 AD3d741 [2016]).
Ordered that the resentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid because the SupremeCourt misstated the law by suggesting that a defendant only has the right to appeal if he or shegoes to trial, and concomitantly, that the right to appeal is limited to trial errors (see People v Brown, 122 AD3d133, 144 n 3 [2014]; People vTaylor, 105 AD3d 778 [2013]; People v Foster, 87 AD3d 299, 303 [2011]). Thus, the purportedwaiver does not preclude review of the defendant's claim that the court improvidently exercisedits discretion in denying him youthful offender treatment. "The determination of whether to grantor deny youthful offender status rests within the sound discretion of the court and depends uponall the attending facts and circumstances of the case" (People v Hesterbey, 121 AD3d 1127, 1128 [2014] [internalquotation marks omitted]; see People vMcEachern, 145 AD3d 741, 742 [2016]; People v Mullings, 83 AD3d 871, 872 [2011]). Here, the courtprovidently exercised its discretion in denying the defendant youthful offender treatment (see People v Lopez, 82 AD3d 906,907 [2011]; People v Symons, 262 AD2d 872 [1999]; cf. People v Cruickshank,105 AD2d 325, 334 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625[1986]).
[*2] Inasmuch as the defendant'spurported waiver of the right to appeal was invalid, it does not preclude review of his excessivesentence claim. However, the resentence imposed was not excessive (see People v Suitte,90 AD2d 80 [1982]). Rivera, J.P., Roman, Hinds-Radix and Christopher, JJ., concur.