PEOPLE v. BELL (2018)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered October 1, 2015, as amended October 27, 2015, convicting defendant, upon his plea of guilty, of attempted criminal sexual act in the first degree, burglary in the second degree as a sexually motivated felony, burglary in the second degree, robbery in the third degree, and grand larceny in the fourth degree (two counts), and sentencing him to an aggregate term of five years, unanimously affirmed.

The record does not establish that defendant made a valid waiver of his right to appeal.  The transcript does not sufficiently demonstrate that defendant orally confirmed his understanding of the waiver (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).

However, we find that the court providently exercised its discretion in denying defendant's request for youthful offender treatment, in light of the seriousness of the offenses, his pattern of aggressive behavior, and his appropriate termination from a treatment program that he was required to complete as a condition of his plea agreement (see e.g. People v. Baptiste, 116 A.D.3d 588, 983 N.Y.S.2d 787 [1st Dept. 2014], lv denied 24 N.Y.3d 1081, 1 N.Y.S.3d 8, 25 N.E.3d 345 [2014] ).

The court properly found that there were no issues of fact requiring a hearing on whether defendant was properly terminated from the program.  The legitimacy of the termination was abundantly established by the program's reliable reports setting forth defendant's increasingly serious misbehavior (see People v. Redwood, 41 A.D.3d 275, 838 N.Y.S.2d 66 [1st Dept. 2007], lv denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007] ), and the court's determination satisfied the requirements of People v. Fiammegta, 14 N.Y.3d 90, 98, 896 N.Y.S.2d 735, 923 N.E.2d 1123 [2010].