The People, etc., respondent, v. Elijah Hesterbey, appellant.

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

The People, etc., respondent, v. Elijah Hesterbey, appellant.

2013–00537 (Ind.No. 5840/12)

Decided: October 29, 2014

PETER B. SKELOS, J.P. THOMAS A. DICKERSON JOSEPH J. MALTESE HECTOR D. LASALLE, JJ. Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel;  Michael C. Zebrowski on the brief), for respondent.

Argued—September 22, 2014


Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered December 19, 2012, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257;  People v. Brown, _AD3d_, 2014 N.Y. Slip Op 06101 [2d Dept 2014] ), and does not bar review of the defendant's contention that the Supreme Court improvidently exercised its discretion in denying him youthful offender status (cf.  People v. Nye, 299 A.D.2d 371, 372).  “ ‘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. Mullings, 83 AD3d 871, 872, quoting People v. Ortega, 114 A.D.2d 912, 912;  see People v. Ciminera, 202 A.D.2d 684;  People v. Carter, 143 A.D.2d 925, 926).   Here, we find no basis for disturbing the Supreme Court's determination to deny youthful offender status to the defendant.



Aprilanne Agostino

Clerk of the Court

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