People v. Torres

• Decision Date: 03 October 2013
• Citation: 110 A.D.3d 1119,972 N.Y.S.2d 738,2013 N.Y. Slip Op. 06408
• Parties: The PEOPLE of The State of New York, Respondent, v. Elijah TORRES, Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1119

972 N.Y.S.2d 738

2013 N.Y. Slip Op. 06408

The PEOPLE of The State of New York, Respondent,

v.Elijah TORRES, Appellant.

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

Oct. 3, 2013.

Brian M. Callahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and SPAIN, JJ.

STEIN, J.

Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered November 5, 2010 in Schenectady County, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and petit larceny.

Defendant pleaded guilty to both counts of an indictment charging him with burglary in the second degree and petit larceny and waived his right to appeal. At sentencing, defendant's request for youthful offender status was denied and he was thereafter sentenced to concurrent terms of four years plus five years of postrelease supervision on the burglary conviction and one year on the petit larceny conviction. Defendant appeals.

We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. Supreme Court distinguished the right to appeal from the rights forfeited by defendant's guilty plea, and defendant acknowledged that he understood the appeal waiver. Further, defendant signed a written waiver in open court, which acknowledged that he had discussed the waiver with counsel and that he was voluntarily, knowingly and intelligently waiving his right to appeal his conviction and sentence ( see People v. Foote, 102 A.D.3d 1056, 1057, 958 N.Y.S.2d 535 [2013],lv. denied20 N.Y.3d 1098, 1102, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013];People v. Shaver, 92 A.D.3d 978, 979, 938 N.Y.S.2d 358 [2012],lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 [2012] ). Defendant's valid waiver of the right to appeal precludes both his claim that Supreme Court improperly denied him youthful offender treatment ( see People v. Brabham, 83 A.D.3d 1225, 1225, 920 N.Y.S.2d 736 [2011];People v. Cullen, 62 A.D.3d 1155, 1157, 880 N.Y.S.2d 211 [2009],lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ) and his request that we exercise our interest of justice jurisdiction to grant him youthful offender status ( see People v. Rahim, 78 A.D.3d 1240, 1241, 910 N.Y.S.2d 288 [2010] ). Therefore, the judgment is affirmed.

ORDERED that the judgment is affirmed.

PETERS, P.J., McCARTHY and SPAIN, JJ., concur...