PEOPLE v. CEPEDA (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We affirm. Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v Pinet, 201 AD3d 1370, 1370 [4th Dept 2022], lv denied 38 NY3d 953 [2022]; People v Hussein, 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see generally People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied ––– US ––––, 140 S Ct 2634 [2020]).

We conclude that County Court did not abuse its discretion in declining to adjudicate defendant a youthful offender (see People v Simpson, 182 AD3d 1046, 1047 [4th Dept 2020], lv denied 35 NY3d 1049 [2020]; see generally People v Minemier, 29 NY3d 414, 421 [2017]). In addition, having reviewed the applicable factors pertinent to a youthful offender determination (see People v Keith B.J., 158 AD3d 1160, 1160 [4th Dept 2018]), we decline to exercise our interest of justice jurisdiction to grant him such status (see Simpson, 182 AD3d at 1047; People v Shrubsall, 167 AD2d 929, 930 [4th Dept 1990]; cf. Keith B.J., 158 AD3d at 1161). Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.