Appeal from a judgment of the Justice Court of the Village of Irvington, Westchester County (Lawrence H. Ecker, J.), rendered May 18, 2009. The judgment adjudicated defendant a youthful offender, upon his pleas of guilty to petit larceny and criminal mischief in the fourth degree, and imposed a sentence of three years' probation.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the judgment adjudicating defendant a youthful offender is affirmed.
Defendant was adjudicated a youthful offender, upon his pleas of guilty to petit larceny (Penal Law § 155.25) and criminal mischief in the fourth degree (Penal Law § 145.00 ), and sentenced to concurrent terms of three years' probation.
The record fails to demonstrate that defendant's waiver of his right to appeal was made knowingly, voluntarily and intelligently (People v Calvi, 89 NY2d 868, 871 ; People v Callahan, 80 NY2d 273, 280 ; People v Cuthbertson, 27 Misc 3d 138[A], 2010 NY Slip Op 50892[U] [App Term, 9th & 10th Jud Dists 2010]; People v O'Connor, 19 Misc 3d 139[A], 2008 NY Slip Op 50901[U] [App Term, 9th & 10th Jud Dists 2007]). During the plea colloquy, defendant acknowledged that he had executed a written waiver form, which merely contained, among other things, the statement, "I understand that as a consideration of being afforded this plea, I waive all rights to appeal this conviction and sentence." There is no indication in the record that defendant understood that the right to appeal is separate and distinct from other rights forfeited upon a plea of guilty (People v Lopez, 6 NY3d 248, 256 ). Consequently, defendant's waiver of his right to appeal was ineffective (compare People v Ramos, 7 NY3d 737 , and People v McCaskill, 76 AD3d 751, 752 , with People v Edwards, 37 AD3d 871, 872  and People v O'Connor, 19 Misc 3d 139[A], 2008 NY Slip Op 50901[U]). We reject defendant's contention that the agreed-upon sentence is harsh and excessive. The sentence imposed is within the statutory guidelines for the crimes of petit larceny and criminal mischief in the fourth degree, which are both class A misdemeanors (Penal Law § 65.00 [b] [i]). Moreover, in view of the court's explicit finding that a term of probation would be in defendant's best interest, defendant's youth and lack of criminal history do not mitigate in favor of a reduction. Thus, the court did not improvidently exercise its discretion in imposing the sentence (People v Suitte, 90 AD2d 82 ), and the record reveals no extraordinary circumstances which warrant a reduction of the sentence in the exercise of the court's interest of justice jurisdiction (People v Vega, 73 AD3d 1218 ; People v Edwards, 37 AD3d at 872-873).
Accordingly, the judgment adjudicating defendant a youthful offender is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: May 09, 2011
© 1992-2011 VersusLaw ...