PEOPLE v. SIMMONS (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court  (Breslin, J.), rendered July 16, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of assault in the first degree.

Defendant, who was 16 when he shot the victim in the stomach with a firearm, pleaded guilty to assault in the first degree and waived his right to appeal.  Supreme Court denied defendant youthful offender status and sentenced him to a prison term of 10 years, followed by five years of postrelease supervision.  Defendant appeals.

We affirm.  Contrary to defendant's contention, defendant's waiver of the right to appeal was valid.  The record reflects that Supreme Court explained that the waiver of the right to appeal was separate from the rights forfeited by the guilty plea, and defendant indicated that he understood.  Further, after being given an opportunity to confer with counsel, defendant acknowledged that he fully understood the written waiver of appeal and executed it in open court.  Despite defendant's age, we find that the record reflects that he entered a knowing, voluntary and intelligent waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Simon, 140 A.D.3d 1533, 1534, 33 N.Y.S.3d 788 [2016];  People v. Hernandez, 140 A.D.3d 1521, 1522, 34 N.Y.S.3d 698 [2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ).

Defendant's contention that Supreme Court improperly denied him youthful offender treatment is foreclosed by the valid waiver of the right to appeal (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015];  People v. Caggiano, 150 A.D.3d 1335, 1336, 51 N.Y.S.3d 435 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017];  People v. Fate, 117 A.D.3d 1327, 1329, 986 N.Y.S.2d 672 [2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014] ).  We note that a valid appeal waiver will not preclude appellate review in the narrow instance where “a sentencing court has entirely abrogated its responsibility to determine whether an eligible youth is entitled to youthful offender status” (People v. Pacherille, 25 N.Y.3d at 1023, 10 N.Y.S.3d 178, 32 N.E.3d 393, citing CPL 720.10[1], [2] ).  Here, the court expressly denied youthful offender treatment, finding it to be inappropriate.  From this record, we conclude that Supreme Court fully considered and rejected the statutory override provisions of CPL 720.10(3) (see People v. Minemier, 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017];  compare People v. Martz, 158 A.D.3d 991, 992–993, 68 N.Y.S.3d 923 [2018] ).  To the extent that defendant contends that the sentence is harsh and excessive, such challenge is also precluded by the valid appeal waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Pixley, 150 A.D.3d 1555, 1557, 56 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ).

ORDERED that the judgment is affirmed.

Garry, P.J.

Devine, Mulvey and Aarons, JJ., concur.