Opinion
2013-00537, Ind. No. 5840/12.
10-29-2014
The PEOPLE, etc., respondent, v. Elijah HESTERBEY, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Michael C. Zebrowski on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Michael C. Zebrowski on the brief), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered December 19, 2012, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.
The defendant's waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297, 2014 N.Y. Slip Op. 06101 [2d Dept.2014] ), and does not bar review of the defendant's contention that the Supreme Court improvidently exercised its discretion in denying him youthful offender status (cf. People v. Nye, 299 A.D.2d 371, 372, 749 N.Y.S.2d 164 ). “ ‘The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case’ ” (People v. Mullings, 83 A.D.3d 871, 872, 921 N.Y.S.2d 152, quoting People v. Ortega, 114 A.D.2d 912, 912, 495 N.Y.S.2d 82 ; see People v. Ciminera, 202 A.D.2d 684, 612 N.Y.S.2d 874 ; People v. Carter, 143 A.D.2d 925, 926, 533 N.Y.S.2d 521 ). Here, we find no basis for disturbing the Supreme Court's determination to deny youthful offender status to the defendant.