PEOPLE v. ROMANO (2008)

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered April 23, 2007, convicting defendant upon his plea of guilty of the crime of rape in the second degree.

 In satisfaction of a superior court information charging defendant with the crime of rape in the first degree, defendant pleaded guilty to the crime of rape in the second degree and waived his right to appeal.   At sentencing defendant's request for youthful offender treatment was denied.   He was sentenced pursuant to the negotiated plea agreement to six months in jail, which time he had already served, and 10 years of probation.   Defendant now appeals, contending that County Court erred by not considering that he was eligible for youthful offender treatment.

 Where, as here, it is asserted that the sentencing court failed to consider youthful offender status for an eligible defendant, the challenge to denial of such status is not precluded by a waiver of the right to appeal (see People v. Griffin, 17 A.D.3d 927, 927, 793 N.Y.S.2d 649 [2005];  People v. Harrington, 281 A.D.2d 748, 749, 721 N.Y.S.2d 709 [2001], lv. denied 96 N.Y.2d 830, 729 N.Y.S.2d 450, 754 N.E.2d 210 [2001] ).   Nevertheless, as the record reveals that County Court expressly considered-and denied-defendant's request for youthful offender treatment, we find no error (see People v. Harrington, 281 A.D.2d at 749, 721 N.Y.S.2d 709;  cf. People v. Aiken, 186 A.D.2d 897, 899, 589 N.Y.S.2d 635 [1992];  People v. Gannon, 162 A.D.2d 818, 819, 557 N.Y.S.2d 726 [1990] ).   A review of the sentencing minutes reveals that County Court was aware that defendant was eligible for such treatment prior to ruling on his request and there is nothing in the record to indicate that he was denied youthful offender status based on a misunderstanding regarding his eligibility.

Defendant's remaining contentions are precluded by his waiver of appeal (see People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Griffin, 17 A.D.3d at 927, 793 N.Y.S.2d 649).

ORDERED that the judgment is affirmed.

ROSE, J.

MERCURE, J.P., SPAIN, LAHTINEN and KAVANAGH, JJ., concur.