PEOPLE v. GIVENS (2007)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Terene GIVENS, Defendant-Appellant.

Decided: January 09, 2007

TOM, J.P., FRIEDMAN, NARDELLI, CATTERSON, MALONE, JJ.

Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marissa K. Gould of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered September 28, 2005, convicting defendant, upon his plea of guilty, of attempted murder in the second degree, and sentencing him to a term of 7 years, unanimously affirmed.

At the first of two plea proceedings, defendant made a valid waiver of his right to appeal as part of his plea agreement (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and, as defendant expressly acknowledged, the second proceeding incorporated by reference the entire prior allocution. Accordingly, defendant's waiver forecloses his present claims that his sentence was excessive and that the court should have granted him youthful offender treatment. Were we to find that defendant did not make an enforceable waiver, we would reject both arguments on the merits (see People v. Callahan, 80 N.Y.2d 273, 285, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).

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