| People v Carter |
| 2021 NY Slip Op 01160 [191 AD3d 1168] |
| February 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Janera D. Carter, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Alexander A. V. Nichols of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered May 2, 2018, convicting defendant upon her plea of guilty of the crime of assault in thesecond degree.
In May 2017, defendant was arraigned on two separate indictments. The first indictment,stemming from a March 2017 incident, charged her with criminal possession of a controlledsubstance in the second degree and criminal possession of a controlled substance in the thirddegree, while the second indictment charged her with assault in the second degree based upon anincident that occurred while she was being held pending trial on the first indictment. In June2017, in satisfaction of both indictments, defendant pleaded guilty to assault in the second degreeand criminal possession of a controlled substance in the third degree and executed a waiver ofher right to appeal. In exchange for her plea, County Court (Champagne, J.) committed toimposing a split sentence of six months in jail followed by five years of postrelease supervision;the court indicated that it would consider granting defendant youthful offender status uponreview of her presentence investigation report (see CPL 720.20 [1] [a]).
In September 2017, after reviewing the presentence investigation report, County Courtinformed the parties that it would honor its original sentencing commitment on the drugpossession conviction, but that it was unwilling to honor the original sentencing commitmentwith respect to defendant's assault conviction. Defendant ultimately elected to withdraw her pleato the assault charge. In November 2017, the matter proceeded to sentencing on the drugpossession conviction, at which time the court determined that youthful offender treatment waswarranted and, consequently, adjudicated defendant a youthful offender, vacated the convictionand sentenced defendant to five years of probation (see CPL 720.20 [3]). In May 2018,defendant, in full satisfaction of the second indictment, pleaded guilty to assault in the seconddegree and purportedly waived her right to appeal. Immediately following her guilty plea, CountyCourt (Richards, J.) sentenced defendant, in accordance with the plea agreement, to a prison termof three years, followed by three years of postrelease supervision. Defendant appeals from theMay 2018 judgment of conviction.
Despite defendant's contentions to the contrary, our review of the record reveals thatdefendant knowingly, intelligently and voluntarily waived her right to appeal. Defendant wasadvised, at the outset of the plea proceeding, that she was required to waive her right to appeal aspart of the plea agreement and indicated that she understood. County Court confirmed thatdefendant had sufficient time to discuss her plea and its consequences with defense counsel andexplained that the right to appeal was separate and distinct from the trial-related rights that shewas forfeiting by pleading guilty (see People v Lopez, 6 NY3d [*2]248, 256 [2006]). After conferring with counsel about its contents,defendant executed a written waiver of appeal in open court. Discerning no infirmities in thecombined oral and written waiver (compare People v Thomas, 34 NY3d 545, 562-563 [2019]), we finddefendant's waiver of appeal to be valid (see People v Purnell, 186 AD3d 1834, 1834 [2020], lvdenied 36 NY3d 975 [2020]; Peoplev Williams, 185 AD3d 1359, 1360 [2020]; People v Thompson-Goggins, 182 AD3d 916, 917 [2020]).
Defendant raises various sentencing challenges. Defendant argues that County Court's failureto grant her youthful offender status on her assault conviction amounted to an illegal sentencebecause it violated CPL 720.20 (2)—a challenge that survives the valid appeal waiver (see People v Christopher T., 48 AD3d1131, 1132 [2008]; People vParks, 23 AD3d 153, 153 [2005]; see generally People v Allen, 86 NY2d 599,602-603 [1995]). CPL 720.20 (2) provides, as relevant here, that "[w]here an eligible youth isconvicted of two or more crimes . . . set forth in two or more accusatory instrumentsconsolidated for trial purposes, the court must not find [the youth] a youthful offender withrespect to any such conviction . . . unless it finds him [or her] a youthful offenderwith respect to all such convictions." Contrary to defendant's contention, however, there was noCPL 720.20 (2) violation here, as the two indictments were not consolidated for trial purposes,but rather were combined—at one time—for plea and sentencing purposes (see People v Turner, 174 AD3d1123, 1125-1126 [2019], lv denied 34 NY3d 985 [2019]). Defendant further arguesthat she is entitled to a new sentencing hearing on the assault conviction because County Courtfailed to make an on-the-record determination as to whether she was entitled to youthful offenderstatus. Although the failure to make an on-the-record determination regarding entitlement toyouthful offender status is an issue that survives a valid appeal waiver (see People v Pacherille, 25 NY3d1021, 1023 [2015]; People vRudolph, 21 NY3d 497, 499, 501 [2013]), County Court was not obligated to make sucha determination here because defendant did not qualify as an eligible youth, having already beenadjudicated a youthful offender in November 2017 in connection with her felony drug possessionconviction (see CPL 720.10 [2] [c]; Penal Law § 220.16; People v CecilZ., 57 NY2d 899, 901 [1982]; People v Brooks, 160 AD3d 762, 764 [2018], lv denied 31NY3d 1115 [2018]). Defendant's remaining challenge to the severity of the agreed-upon sentenceis precluded by the valid appeal waiver (see People v Lopez, 6 NY3d at 256; People v Burnett, 186 AD3d 1837,1838 [2020], lv denied 36 NY3d 969 [2020]).
Garry, P.J., Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.