The People of the State of New York, Respondent, v. Richard Rubiera, Defendant–Appellant.  Ind. No. (2021)

Case No.2019–1871

Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.

Judgment, Supreme Court, Bronx County (James A. McCarty, J.), rendered January 17, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 31/212 years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal, which forecloses review of his claim that the court should have granted his request for youthful offender treatment.  The court's colloquy, viewed in conjunction with the written waiver, demonstrates that defendant understood his right to appeal was separate and distinct from the rights automatically forfeited upon his guilty plea (see People v. Bryant, 28 NY3d 1094, 1095–1096 [2016];  People v. Lewis, 127 AD3d 569 [1st Dept 2015], lv denied 26 NY3d 931 [2015] ).

Regardless of whether defendant validly waived his right to appeal, the court providently exercised its discretion in denying youthful offender treatment (see People v. Drayton, 39 N.Y.2d 580 [1976] ), given the seriousness of the underlying crime and defendant's significant criminal record.  Among other things, defendant committed the present offense while on bail pending a first-degree robbery charge in New York County.