PEOPLE v. BLAKE (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him, upon a plea of guilty, of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]) and, in appeal No. 2, from a judgment convicting him, upon a plea of guilty, of criminal possession of a weapon in the second degree (§ 265.03 [3]). The two pleas were entered in a single plea proceeding.

As defendant contends in both appeals and the People correctly concede, the respective waivers of defendant's right to appeal are invalid inasmuch as the written waivers and the oral waiver colloquy “ ‘mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as [overly broad and] an absolute bar to defendant taking an appeal’ ” (People v. Johnson, 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021]; see People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).

Defendant contends in both appeals that Supreme Court failed to make the necessary determination whether he was eligible for youthful offender treatment. Contrary to defendant's contention, we conclude that the court implicitly resolved the threshold issue of youthful offender eligibility in defendant's favor (see People v. Macon, 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019]; People v. Stitt, 140 A.D.3d 1783, 1784, 33 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016]). Contrary to defendant's further contention in both appeals, even assuming, arguendo, that he was eligible for youthful offender status, we conclude that the court did not abuse its discretion in refusing to grant him that status (see People v. Lewis, 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015]). In addition, we perceive no basis for exercising our own discretion in the interest of justice to adjudicate defendant a youthful offender (see id. at 1400-1401, 7 N.Y.S.3d 800).

Finally, we reject defendant's contention in both appeals that his agreed-upon sentences are unduly harsh and severe.