PEOPLE v. JOSEPH

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Jean Luc JOSEPH, appellant.

Decided: April 29, 2008

REINALDO E. RIVERA, J.P., ROBERT A. LIFSON, DAVID S. RITTER, and EDWARD D. CARNI, JJ. Lynn W.L. Fahey, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel;  Rami A. Yomtov on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J.), rendered August 17, 2006, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's purported waiver of his right to appeal from his sentence cannot be considered knowing, voluntary, and intelligent (see People v. Warde, 45 A.D.3d 879, 847 N.Y.S.2d 144;  People v. Sheppard, 29 A.D.3d 829, 813 N.Y.S.2d 911;  People v. Henry, 29 A.D.3d 820, 815 N.Y.S.2d 209).   However, since the defendant pleaded guilty with the understanding that he would receive the sentence that was thereafter imposed, which did not include youthful offender treatment, he has no cause to complain on appeal (see People v. Gray, 46 A.D.3d 703, 847 N.Y.S.2d 230;  People v. Sharlow, 12 A.D.3d 724, 726, 784 N.Y.S.2d 203;  People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).   The Supreme Court properly exercised its discretion in declining to sentence the defendant as a youthful offender since the defendant was convicted of an armed felony and there were no mitigating circumstances attendant to the commission of the crime (see CPL 720.10[2] [a] [ii];  CPL 720.10[3][i];  People v. Thomas, 206 A.D.2d 708, 709, 614 N.Y.S.2d 643).

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