PEOPLE v. MCEACHERN (2018)

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Neil Jon Firetog, J.), imposed February 7, 2017, upon his conviction of manslaughter in the first degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. McEachern, 145 A.D.3d 741, 43 N.Y.S.3d 425).

ORDERED that the resentence is affirmed.

The defendant's purported waiver of the right to appeal was invalid because the Supreme Court misstated the law by suggesting that a defendant only has the right to appeal if he or she goes to trial, and concomitantly, that the right to appeal is limited to trial errors (see People v. Brown, 122 A.D.3d 133, 144 n. 3, 992 N.Y.S.2d 297;  People v. Taylor, 105 A.D.3d 778, 961 N.Y.S.2d 788;  People v. Foster, 87 A.D.3d 299, 303, 927 N.Y.S.2d 92).  Thus, the purported waiver does not preclude review of the defendant's claim that the court improvidently exercised its discretion in denying him youthful offender treatment.  “The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v. Hesterbey, 121 A.D.3d 1127, 1128, 994 N.Y.S.2d 421 [internal quotation marks omitted];  see People v. McEachern, 145 A.D.3d 741, 742, 43 N.Y.S.3d 425;  People v. Mullings, 83 A.D.3d 871, 872, 921 N.Y.S.2d 152).  Here, the court providently exercised its discretion in denying the defendant youthful offender treatment (see People v. Lopez, 82 A.D.3d 906, 907, 919 N.Y.S.2d 340;  People v. Symons, 262 A.D.2d 872, 692 N.Y.S.2d 530;  cf. People v. Cruickshank, 105 A.D.2d 325, 334, 484 N.Y.S.2d 328, affd sub nom. People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530).

Inasmuch as the defendant's purported waiver of the right to appeal was invalid, it does not preclude review of his excessive sentence claim.  However, the resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.