People v. Wilson, 108815

• Citation: 85 N.Y.S.3d 605,165 A.D.3d 1323
• Decision Date: 04 October 2018
• Docket Number: 108815
• Parties: The PEOPLE of the State of New York, Respondent, v. Dunna WILSON, Appellant.
• Court: New York Supreme Court Appellate Division

165 A.D.3d 1323
85 N.Y.S.3d 605

The PEOPLE of the State of New York, Respondent,
v.
Dunna WILSON, Appellant.

108815

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

Calendar Date: September 10, 2018
Decided and Entered: October 4, 2018

85 N.Y.S.3d 606

Dennis J. Lamb, Troy, for defendant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz, Fredonia, of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), rendered December 18, 2015, convicting defendant upon his plea of guilty of the crimes of burglary in the third degree (two counts) and robbery in the third degree.

When he was 17 years old, defendant forcibly took property from a pedestrian and burglarized two homes in Schenectady

85 N.Y.S.3d 607

County. He subsequently waived indictment and agreed to be prosecuted by a superior court information charging him with robbery in the third degree and two counts of burglary in the third degree. Defendant pleaded guilty to these crimes in satisfaction thereof as well as other potential charges and executed a written waiver of the right to appeal. Under the terms of the plea agreement, defendant did not seek to be adjudicated a youthful offender, but agreed to be sentenced to concurrent prison terms of 2 to 7 years for each conviction. Prior to sentencing, County Court undertook an in depth examination of whether defendant should be sentenced as a youthful offender (see CPL 720.10 ; People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). It ultimately declined to sentence him as such and sentenced him in accordance with the plea agreement. Defendant now appeals.

Defendant contends that County Court erroneously failed to adjudicate him a youthful offender. Although a valid waiver of the right to appeal precludes such a claim (see People v. Simmons, 159 A.D.3d 1270, 1271, 73 N.Y.S.3d 681 [2018] ; 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] ), defendant's appeal waiver was invalid as he was not advised of the separate and distinct nature of the waiver and County Court did not ascertain that he understood its many ramifications (see People v. Hart, 160 A.D.3d 1137, 1138, 71 N.Y.S.3d 392 [2018] ; People v. Thompson, 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018] ). Turning to the merits, "[t]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court's discretion and, absent a clear abuse of that discretion, its decision will not be disturbed" ( People v. Wolcott, 154 A.D.3d 1001, 1001, 60 N.Y.S.3d 852 [2017] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ; see People v. Strong, 152 A.D.3d 1076, 1077, 60 N.Y.S.3d...