PEOPLE v. MARTINEZ (2008)

Defendant appeals from a judgment convicting him upon his plea of guilty of one count each of robbery in the first degree (Penal Law § 160.15[3] ) and assault in the second degree (§ 120.05[2] ) and two counts of robbery in the second degree (§ 160.10[1], [2][a] ).   We conclude that defendant's waiver of the right to appeal was knowingly and voluntarily entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   That valid waiver encompasses the contention of defendant that County Court should have afforded him youthful offender status (see People v. Watkins, 52 A.D.3d 1258, 858 N.Y.S.2d 639, lv. denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455;  People v. Macklin, 49 A.D.3d 1299, 852 N.Y.S.2d 863, lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255) and, in any event, defendant failed to preserve his contention for our review (see Macklin, 49 A.D.3d 1299, 852 N.Y.S.2d 863;  People v. Wood, 28 A.D.3d 1156, 813 N.Y.S.2d 318).   We decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see People v. Bosse, 23 A.D.3d 1063, 1064, 803 N.Y.S.2d 472, lv. denied 6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280;  People v. Potter, 13 A.D.3d 1191, 786 N.Y.S.2d 793, lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 735, 831 N.E.2d 980).   Finally, although “defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed” and his challenge to the severity of the sentence thus is not encompassed by the waiver of the right to appeal (People v. Mingo, 38 A.D.3d 1270, 1271, 832 N.Y.S.2d 721), we nevertheless conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: