People v. Anderson

• Decision Date: 23 December 2011
• Citation: 90 A.D.3d 1475,2011 N.Y. Slip Op. 09364,935 N.Y.S.2d 237
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald ANDERSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09364
90 A.D.3d 1475
935 N.Y.S.2d 237

The PEOPLE of the State of New York, Respondent,
v.
Gerald ANDERSON, Defendant–Appellant.

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

Dec. 23, 2011.

[935 N.Y.S.2d 238]

Charles J. Greenberg, Buffalo, for Defendant–Appellant.

Gerald Anderson, Defendant–Appellant Pro Se.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.

MEMORANDUM:

[90 A.D.3d 1475] Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ). Contrary to defendant's contention, [90 A.D.3d 1476] his waiver of the right to appeal was knowingly, intelligently, and voluntarily entered ( see People v. Graham, 77 A.D.3d 1439, 908 N.Y.S.2d 490, lv. denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing ( see generally People v. McCarthy, 83 A.D.3d 1533, 921 N.Y.S.2d 755, lv. denied 17 N.Y.3d 819, 929 N.Y.S.2d 808, 954 N.E.2d 99; People v. Fehr, 303 A.D.2d 1039, 757 N.Y.S.2d 205, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417; People v. Hendricks, 270 A.D.2d 944, 705 N.Y.S.2d 476). We reject defendant's contention that the court abused its discretion in denying his request for youthful offender status, however, and we decline to exercise our interest of justice jurisdiction to adjudicate him a youthful offender (

[935 N.Y.S.2d 239]

See People v. Jock, 68 A.D.3d 1816, 890 N.Y.S.2d 840, lv. denied 14 N.Y.3d 801, 899 N.Y.S.2d 136, 925 N.E.2d 940).

Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Moorer, 63 A.D.3d 1590, 879 N.Y.S.2d 760, lv. denied 13 N.Y.3d 837, 890 N.Y.S.2d 453, 918 N.E.2d 968), and this case does not fall within the rare exception to the preservation requirement ( see Lopez, 71 N.Y.2d at 666,...