People v. Burt

• Decision Date: 28 December 2012
• Citation: 955 N.Y.S.2d 906,101 A.D.3d 1729,2012 N.Y. Slip Op. 09211
• Parties: The PEOPLE of the State of New York, Respondent, v. Jibril A. Burt, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1729

955 N.Y.S.2d 906

2012 N.Y. Slip Op. 09211

The PEOPLE of the State of New York, Respondent,

v.Jibril A. Burt, Defendant–Appellant.

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

Dec. 28, 2012.

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered September 29, 2011. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that his waiver of the right to appeal is unenforceable and that he should have been afforded youthful offender treatment. We reject those contentions. Defendant waived his right to appeal both orally and in writing, and the record demonstrates that County Court “ ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Glasper, 46 A.D.3d 1401, 1401, 847 N.Y.S.2d 875,lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252;see People v. Korber, 89 A.D.3d 1543, 1543, 932 N.Y.S.2d 780,lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436). Further, “ the record as a whole, including the written waiver of the right to appeal, establishes ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Jones, 96 A.D.3d 1637, 1637, 946 N.Y.S.2d 797,lv. denied 19 n.y.3d 1103). defendant's valid waiver of the right to appeal encompasses his contention that he should have been afforded youthful offender treatment ( see People v. Rush, 94 A.D.3d 1449, 1449–1450, 942 N.Y.S.2d 844,lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217). Finally, there is no merit to defendant's contention that the court failed to rule on his request for such treatment inasmuch as the court's comments at sentencing establish that the request was denied.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

SCUDDER, P.J., FAHEY, CARNI, LINDLEY, and SCONIERS, JJ., concur.