Opinion
1293 KA 09-01271.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Gerald GIBSON, Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
Opinion
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.052 ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (§ 125.20). We previously held the cases, reserved decision, and remitted the matters to Supreme Court to determine whether to adjudicate defendant a youthful offender in both matters (People v. Gibson, 122 A.D.3d 1331, 1332, 995 N.Y.S.2d 893; People v. Gibson, 122 A.D.3d 1332, 994 N.Y.S.2d 888). Upon remittal, the court declined to adjudicate defendant a youthful offender, and we now affirm.
Initially, we note that “no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” and the determination to deny him youthful offender status (People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150, citing People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272; see People v. Anderson, 90 A.D.3d 1475, 1476, 935 N.Y.S.2d 237, lv. denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002). Thus, defendant's waiver of the right to appeal does not encompass his challenge to the severity of the sentence and the denial of youthful offender status (see People v. Avellino, 119 A.D.3d 1449, 1449–1450, 988 N.Y.S.2d 834; Anderson, 90 A.D.3d at 1476, 935 N.Y.S.2d 237). Contrary to defendant's contention in these appeals following remittal, however, we conclude that the sentence in each appeal is not unduly harsh or severe, and we further conclude that the court did not abuse its discretion in declining to adjudicate him a youthful offender (see People v. Guppy, 92 A.D.3d 1243, 1243, 937 N.Y.S.2d 921, lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211). Furthermore, we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (cf. People v. Shrubsall, 167 A.D.2d 929, 930–931, 562 N.Y.S.2d 290). The record establishes that two separate violent incidents were involved, one in which defendant aided a codefendant who stabbed the victim and inflicted serious injuries, and the other in which defendant killed a different young man with whom he had been feuding for months. In the latter incident, defendant took the handgun away from another participant in the crime who was refusing to shoot the victim and shot the victim himself.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SCUDDER, P.J., SMITH, PERADOTTO, and CARNI, JJ., concur.