People v. McGrew

• Decision Date: 20 June 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas E. McGREW, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1490
987 N.Y.S.2d 539
2014 N.Y. Slip Op. 04663

The PEOPLE of the State of New York, Respondent,
v.
Thomas E. McGREW, Jr., Defendant–Appellant.

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

June 20, 2014.

[987 N.Y.S.2d 540]

David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.

Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.

PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, and DeJOSEPH, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of attempted course of sexual conduct against a child in the second degree (Penal Law §§ 110.00, 130.80[1][a] ), defendant contends that his waiver of the right to appeal was invalid because it was not knowing, voluntary and intelligent, and that County Court abused its discretion in denying his request to adjudicate him a youthful offender.

Initially, we reject the People's contention that defendant was required to preserve for our review his challenge to the voluntariness of his waiver of the right to appeal ( see People v. Lopez, 52 A.D.3d 852, 853, 859 N.Y.S.2d 267;People v. Hoover, 37 A.D.3d 298, 299–300, 830 N.Y.S.2d 115). Contrary to defendant's contention, however, the record establishes that his waiver was valid. Defendant waived his right to appeal both orally and in writing before pleading guilty, and the court conducted “ ‘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. denied10 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. denied19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436). Moreover, the record demonstrates that “ ‘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. denied19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820). Defendant's valid waiver of the right to appeal encompasses his contention that the court abused its discretion in denying his request for youthful offender status ( see People v. Johnson, 111 A.D.3d 1391, 1391, 974 N.Y.S.2d 853;People v. Rush, 94 A.D.3d 1449, 1449–1450, 942 N.Y.S.2d 844,lv. denied19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217;People v. Farewell, 90 A.D.3d 1502, 1502, 934 N.Y.S.2d 884,lv. de...