People v. Weathington

• Decision Date: 08 July 2016
• Citation: 34 N.Y.S.3d 859,2016 N.Y. Slip Op. 05476,141 A.D.3d 1173
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicolas WEATHINGTON, Defendant–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1173
34 N.Y.S.3d 859
2016 N.Y. Slip Op. 05476

The PEOPLE of the State of New York, Respondent,
v.
Nicolas WEATHINGTON, Defendant–Appellant. (Appeal No. 2.)

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

July 8, 2016.

34 N.Y.S.3d 860

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.

Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.

PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

141 A.D.3d 1173

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ) and burglary in the second degree (§ 140.25[2] ) and, in appeal No. 2, he appeals from the resentence on that conviction. We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v. Primm, 57 A.D.3d 1525, 1525, 870 N.Y.S.2d 188, lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 ).

We otherwise affirm the judgment in appeal No. 1 and affirm the resentence in appeal No. 2. Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal, and that waiver encompasses his challenge to the severity of the resentence in this case (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ;

34 N.Y.S.3d 861

People v.

141 A.D.3d 1174

Matsulavage, 121 A.D.3d 1581, 1581, 993 N.Y.S.2d 423, lv. denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 ; People v. O'Harrow, 107 A.D.3d 1601, 1601–1602, 966 N.Y.S.2d 730, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 ). “Defendant waived his right to appeal both orally and in writing, and the record demonstrates that County Court engage[d] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Burt, 101 A.D.3d 1729, 1730, 955 N.Y.S.2d 906, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 [internal quotation marks omitted] ). As the People correctly concede, however, no mention of youthful offender status was made on the record before defendant waived his right to appeal, and thus defendant's...