JONES, KENNETH L., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
763
KA 11-02171
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENNETH L. JONES, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered October 17, 2011. The judgment convicted
defendant, upon his plea of guilty, of assault in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of assault in the first degree (Penal Law §
120.10 [1]). Contrary to defendant’s contention, the record
establishes that he knowingly, voluntarily and intelligently waived
the right to appeal (see generally People v Lopez, 6 NY3d 248, 256;
People v Luper, 101 AD3d 1668, 1668, lv denied 20 NY3d 1101). The
valid waiver of the right to appeal, however, does not encompass
defendant’s contention regarding the denial of his request for
youthful offender status because “[n]o mention of youthful offender
status was made before defendant waived his right to appeal during the
plea colloquy” (People v Anderson, 90 AD3d 1475, 1476, lv denied 18
NY3d 991). We nevertheless reject defendant’s contention that County
Court abused its discretion in denying his request for youthful
offender status (see People v Guppy, 92 AD3d 1243, 1243, lv denied 19
NY3d 961; People v Session, 38 AD3d 1300, 1301, lv denied 8 NY3d 990).
The valid waiver of the right to appeal encompasses defendant’s
challenge to the severity of his sentence (see Lopez, 6 NY3d at 255-
256).
Entered: June 14, 2013 Frances E. Cafarell
Clerk of the Court