| People v Allen |
| 2019 NY Slip Op 05890 [174 AD3d 1456] |
| July 31, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kasseen Allen, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered May 3,2016. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of two counts of attempted burglary in the second degree (Penal Law§§ 110.00, 140.25 [2]) and, in appeal No. 2, he appeals from a judgmentconvicting him upon his plea of guilty of one count of attempted burglary in the second degree(§§ 110.00, 140.25 [2]).
Defendant contends in each appeal that his waiver of the right to appeal is invalid because hedid not receive any consideration in exchange therefor. We reject that contention. The recordestablishes that defendant received consideration inasmuch as the plea agreements resulted indefendant pleading guilty to reduced charges that satisfied several pending charges (seePeople v Frank, 258 AD2d 900, 900 [4th Dept 1999], lv denied 93 NY2d 924 [1999];cf. People v Gramza, 140 AD3d1643, 1643-1644 [4th Dept 2016], lv denied 28 NY3d 930 [2016]).
Contrary to defendant's further contention, the record establishes in each appeal that CountyCourt engaged him in "an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice . . . and informed him that the waiver was a conditionof the plea agreement" (People vKrouth, 115 AD3d 1354, 1354-1355 [4th Dept 2014], lv denied 23 NY3d 1064[2014] [internal quotation marks omitted]; see People v Miller, 161 AD3d 1579, 1579 [4th Dept 2018], lvdenied 31 NY3d 1119 [2018]). In addition, the record establishes that defendant "read andunderstood the contents of the written waiver that he executed during [each] proceeding"(Miller, 161 AD3d at 1579; cf.People v Bradshaw, 18 NY3d 257, 265 [2011]). We thus conclude that " '[t]heplea colloqu[ies], together with the written waiver[s] of the right to appeal executed bydefendant, establish[ ] that defendant's waiver[s] of the right to appeal [were] knowingly,intelligently, and voluntarily entered' " (Miller, 161 AD3d at 1579; see People v Lopez, 6 NY3d 248,256 [2006]). Contrary to defendant's contention, "there is no indication in the record that [his]age, experience, or background . . . rendered his waiver[s] of the right to appealinvalid" (People v Ruffins, 78 AD3d1627, 1628 [4th Dept 2010]; seePeople v Scott, 144 AD3d 1597, 1598 [4th Dept 2016], lv denied 28 NY3d 1150[2017]; see generally People vSanders, 25 NY3d 337, 340-342 [2015]). Moreover, defendant's " 'monosyllabicaffirmative responses to questioning by [the court] do not render his [waivers of the right toappeal] unknowing and involuntary' " (People v Harris, 94 AD3d 1484, 1485 [4th Dept 2012], lvdenied 19 NY3d 961 [2012]; seePeople v Hand, 147 AD3d 1326, 1326-1327 [4th Dept 2017], lv denied 29NY3d 998 [2017]).
Defendant's challenge in each appeal to the court's denial of youthful offender status does notsurvive his valid waiver of the right to appeal. "[W]hen a sentencing court has entirely abrogatedits responsibility to determine whether an eligible youth (see CPL 720.10 [1], [2]) isentitled to youthful offender status, an appeal waiver [does] not foreclose [appellate] review ofthe court's failure to make that determination" (People v Pacherille, 25 NY3d 1021, 1023 [2015]; see People v Rudolph, 21 NY3d497, 499 [2013]; People vSimmons, 159 AD3d 1270, 1271 [3d Dept 2018]). Here, however, defendant'scontention that the court, in effect, entirely abrogated its responsibility to determine whether hewas entitled to youthful offender status is belied by the record (see People v Cardona, 144 AD3d936, 936 [2d Dept 2016]). The court properly treated defendant as an eligible youth(see CPL 720.10 [1], [2]; cf.People v Crimm, 140 AD3d 1672, 1673-1674 [4th Dept 2016]), but denied him youthfuloffender status upon consideration of "the gravity of the crime[s] and manner in which [theywere] committed, mitigating circumstances, . . . defendant's attitude toward societyand respect for the law," and the contents of the presentence reports (People vCruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd 67 NY2d 625 [1986]; seeCardona, 144 AD3d at 936). Thus, in each appeal, defendant's "valid waiver of the right toappeal . . . forecloses appellate review of [the] sentencing court's discretionarydecision to deny youthful offender status" (Pacherille, 25 NY3d at 1024). The validwaiver of the right to appeal in each appeal also forecloses review of defendant's request that weexercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v Torres, 110 AD3d1119, 1119 [3d Dept 2013], lv denied 22 NY3d 1044 [2013]; see generallyLopez, 6 NY3d at 255).
Finally, defendant's further challenge to the severity of the sentence in each appeal isforeclosed by his valid waiver of the right to appeal (see Lopez, 6 NY3d at 256).Present—Whalen, P.J., Peradotto, DeJoseph, Curran and Winslow, JJ.