| People v Lang |
| 2019 NY Slip Op 09125 [178 AD3d 1362] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Storm U. Lang, Also Known as Storm U.J. Lang, Also Known as StormLang, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedDecember 8, 2015. The judgment convicted defendant, upon his plea of guilty, of sexual abuse inthe first degree (two counts) and sexual abuse in the second degree. The judgment was affirmedby order of this Court entered October 5, 2018, in a memorandum decision (165 AD3d 1584[2018]), and defendant on January 31, 2019, was granted leave to appeal to the Court of Appealsfrom the order of this Court (32 NY3d 1174 [2019]), and the Court of Appeals on November 26,2019, reversed the order and remitted the case to this Court for a determination of all issuesraised by not determined on the appeal to this Court (— NY3d —, 2019 NY SlipOp 08545 [2019]).
Now, upon remittitur from the Court of Appeals,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals (People vThomas, — NY3d —, 2019 NY Slip Op 08545 [2019], revg People vLang, 165 AD3d 1584 [4th Dept 2018]). We previously affirmed a judgment convictingdefendant upon his plea of guilty of two counts of sexual abuse in the first degree (Penal Law§ 130.65 [3]) and one count of sexual abuse in the second degree(§ 130.60 [2]) and concluded that the waiver of the right to appeal was valid(Lang, 165 AD3d at 1584-1585). On appeal, the Court of Appeals determined that thewaiver of the right to appeal was involuntarily made and unenforceable inasmuch as CountyCourt mischaracterized the appellate rights waived (Thomas, — NY3d at—, 2019 NY Slip Op 08545, *6). The Court remitted the matter to us for determination ofissues raised but not determined on the appeal (id. at —, 2019 NY Slip Op 08545,*7). We now affirm.
Defendant failed to preserve for our review his contention that the court erred in making adetermination on youthful offender status without giving him or defense counsel an opportunityto be heard (see generally People vRivera, 111 AD3d 1280, 1282 [4th Dept 2013], lv denied 22 NY3d 1090 [2014];People v Brotz, 108 AD3d1236, 1236 [4th Dept 2013]). In any event, defendant's contention is without merit inasmuchas the court complied with CPL 380.50 (1). Contrary to defendant's further contention, the courtdid not abuse its discretion in refusing to grant him youthful offender status (see People v Abdul-Jaleel, 142 AD3d1296, 1298-1299 [4th Dept 2016], lv denied 29 NY3d 946 [2017]; People v Lewis, 128 AD3d 1400,1400 [4th Dept 2015], lv denied 25 NY3d 1203 [2015]), and we decline to exercise ourinterest of justice jurisdiction to adjudicate defendant a youthful offender (seeAbdul-Jaleel, 142 AD3d at 1299; Lewis, 128 AD3d at 1400-1401).Present—Whalen, P.J., Centra, Peradotto, Lindley and DeJoseph,JJ.