THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DONTE LEE DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of gang assault in the second degree (Penal Law § 120.06), defendant contends that Supreme Court failed to engage in an adequate colloquy to ensure that his waiver of the right to appeal was knowing and voluntary and that the court erred in denying his request for youthful offender status.  “Even assuming, arguendo, that the waiver by defendant of the right to appeal is invalid and thus does not encompass his challenge to the court's refusal to adjudicate him a youthful offender, we nevertheless reject that challenge” (People v. McClellan, 49 AD3d 1201, 1202;  see People v. Davis, 84 AD3d 1710, 1710, lv denied 17 NY3d 815).   With regard to defendant's alternative contention that his sentence is unduly harsh and severe, the People correctly concede that defendant's purported waiver of the right to appeal would not encompass that contention in any event, inasmuch as defendant waived the right to appeal before the court advised him of the maximum possible sentence he could receive (see People v. Allen, 93 AD3d 1340, 1341, lv denied 19 NY3d 956;  People v. Farrell, 71 AD3d 1507, 1507, lv denied 15 NY3d 804).   We nevertheless conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court