People v. Simmons, 107847
| Decision Date | 29 March 2018 |
| Docket Number | 107847 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Naseir SIMMONS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
159 A.D.3d 1270
73 N.Y.S.3d 681
The PEOPLE of the State of New York, Respondent,
v.
Naseir SIMMONS, Appellant.
107847
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: February 15, 2018
Decided and Entered: March 29, 2018
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the Supreme Court
(Breslin, J.), rendered July 16, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Defendant, who was 16 when he shot the victim in the stomach with a firearm, pleaded guilty to assault in the first degree and waived his right to appeal. Supreme Court denied defendant youthful offender status and sentenced him to a prison term of 10 years, followed by five years of postrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, defendant's waiver of the right to appeal was valid. The record reflects that Supreme Court explained that the waiver of the right to appeal was separate from the rights forfeited by the guilty plea, and defendant indicated that he understood. Further, after being given an opportunity to confer with counsel, defendant acknowledged that he fully understood the written waiver of appeal and executed it in open court. Despite defendant's age, we find that the record reflects that he entered a knowing, voluntary and intelligent waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Simon, 140 A.D.3d 1533, 1534, 33 N.Y.S.3d 788 [2016] ; People v. Hernandez, 140 A.D.3d 1521, 1522, 34 N.Y.S.3d 698 [2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ).
Defendant's contention that Supreme Court improperly denied him youthful offender treatment is foreclosed by the valid waiver of the right to appeal (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Caggiano, 150 A.D.3d 1335, 1336, 51 N.Y.S.3d 435 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Fate, 117 A.D.3d 1327, 1329, 986 N.Y.S.2d 672 [2014], lv denied 24...
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