| People v Wilson |
| 2018 NY Slip Op 06598 [165 AD3d 1323] |
| October 4, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dunna Wilson, Appellant. |
Dennis J. Lamb, Troy, for defendant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Schenectady County (Loyola, J.),rendered December 18, 2015, convicting defendant upon his plea of guilty of the crimes ofburglary in the third degree (two counts) and robbery in the third degree.
When he was 17 years old, defendant forcibly took property from a pedestrian andburglarized two homes in Schenectady County. He subsequently waived indictment and agreed tobe prosecuted by a superior court information charging him with robbery in the third degree andtwo counts of burglary in the third degree. Defendant pleaded guilty to these crimes insatisfaction thereof as well as other potential charges and executed a written waiver of the rightto appeal. Under the terms of the plea agreement, defendant did not seek to be adjudicated ayouthful offender, but agreed to be sentenced to concurrent prison terms of 2
Defendant contends that County Court erroneously failed to adjudicate him a youthfuloffender. Although a valid waiver of the right to appeal precludes such a claim (see People v Simmons, 159 AD3d1270, 1271 [2018]; People vCaggiano, 150 AD3d 1335, 1336 [2017], lv denied 29 NY3d 1124 [2017]),defendant's appeal waiver was invalid as he was not advised of the separate and distinct nature ofthe waiver and County Court did not ascertain that he understood its many ramifications (see People v Hart, 160 AD3d1137, 1138 [2018]; People vThompson, 157 AD3d 1141, 1141 [2018]). Turning to the merits, "[t]he decision togrant or deny youthful offender status rests within the sound exercise of the sentencing court'sdiscretion and, absent a clear abuse of that discretion, its decision will not be disturbed" (People v Wolcott, 154 AD3d1001, 1001 [2017] [internal quotation marks and citations omitted], lv denied 31[*2]NY3d 1089 [2018]; see People v Strong, 152 AD3d 1076, 1077 [2017]). Among thefactors to be considered are " 'the gravity of the crime and manner in which it wascommitted, mitigating circumstances, [the] defendant's prior criminal record, prior acts ofviolence, recommendations in the presentence reports, [the] defendant's reputation, the level ofcooperation with authorities, [the] defendant's attitude toward society and respect for the law, andthe prospects for rehabilitation and hope for a future constructive life' " (People v Price, 150 AD3d 1485,1486 [2017], lv denied 29 NY3d 1132 [2017], quoting People v Cruickshank, 105AD2d 325, 334 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625[1986]).
Here, County Court obtained an updated presentence investigation report specificallyaddressing the issue of youthful offender treatment and held proceedings at which both thePeople and defense counsel presented arguments on this issue. During these proceedings, it wasdisclosed that defendant had previously been adjudicated a juvenile delinquent for committingthe crime of criminal possession of stolen property in the fourth degree and that he haddisciplinary problems and was frequently absent from school. In addition, defendant admitted tosmoking marihuana on a daily basis, had several arson charges pending at the time of the plea,had been arrested for an assault in jail while his case was pending, committed one of theburglaries while the homeowners were sleeping upstairs and appeared unmoved by his criminalconduct during the probation interview. County Court concluded that defendant's pattern ofcriminal conduct and the gravity of the crimes, particularly those involving the invasion ofprivate homes, warranted denying defendant youthful offender treatment. Under thecircumstances presented, we do not find that County Court abused its discretion (see People v Jayden A., 159 AD3d1284, 1285 [2018], lv denied 31 NY3d 1118 [2018]; People v Strong, 152AD3d at 1077). Furthermore, in view of the above and given that the sentence imposed wasagreed to by defendant as part of the plea agreement, we do not find extraordinary circumstancesor an abuse of discretion warranting a reduction of the sentence in the interest of justice (seePeople v Wolcott, 154 AD3d at 1002; People v Strong, 152 AD3d at 1077).
McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.