Opinion
2012-01-5
The PEOPLE of the State of New York, Respondent, v. John JOYCE, Appellant.
David E. Woodin, Catskill, for appellant. Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
David E. Woodin, Catskill, for appellant. Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Before: MERCURE, ACTING P.J., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered November 20, 2010, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.
Defendant waived indictment and was charged with one count of robbery in the second degree in a superior court information. Defendant pleaded guilty to that charge and waived his right to appeal and was thereafter sentenced in accordance with the plea agreement, as relevant here, to seven years in prison to be followed by five years of postrelease supervision. Defendant appeals.
We affirm. Initially, taking into consideration all of the relevant facts and circumstances surrounding defendant's appeal waiver—including his age—we find that the waiver was knowing, intelligent and voluntary ( see People v. Romano, 45 A.D.3d 910, 914, 845 N.Y.S.2d 151 [2007], lv. denied 10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267 [2008] ). The record demonstrates that County Court adequately explained the terms of the plea, including that defendant was waiving his right to appeal separately from those other rights that he was forfeiting, the written appeal waiver was completed in open court and defendant stated that he discussed the waiver of appeal and its consequences with his counsel. Therefore, defendant validly waived his right to appeal ( see People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011]; People v. Jean–Francois, 82 A.D.3d 1366, 1366, 918 N.Y.S.2d 389 [2011], lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011]; People v. Rosseter, 62 A.D.3d 1093, 1094, 878 N.Y.S.2d 512 [2009] ).
While defendant contends that County Court erred in failing to consider him for youthful offender status, we note that defendant never requested it ( see People v. Rudolph, 85 A.D.3d 1492, 1492–1493, 927 N.Y.S.2d 406 [2011]; People v. Hubbard, 74 A.D.3d 1580, 1581, 904 N.Y.S.2d 530 [2010]; People v. Hopper, 39 A.D.3d 1030, 1031, 835 N.Y.S.2d 476 [2007] ) and, moreover, his claim that youthful offender status should be imposed is barred by his valid appeal waiver ( see People v. Benson, 87 A.D.3d 1228, 1229, 929 N.Y.S.2d 885 [2011]; People v. Brabham, 83 A.D.3d 1225, 1225, 920 N.Y.S.2d 736 [2011] ). Defendant's claim of ineffective assistance of counsel, to the extent that it implicates the voluntariness of his plea, survives his appeal waiver but is unpreserved for our review because he failed to move to vacate the judgment of conviction or withdraw his plea ( see People v. Planty, 85 A.D.3d 1317, 1318, 925 N.Y.S.2d 240 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Finally, his claim that the sentence given was harsh and excessive is foreclosed by his valid waiver of appeal ( see People v. Moreno, 86 A.D.3d at 864, 927 N.Y.S.2d 487; People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011] ).
ORDERED that the judgment is affirmed.