Opinion
1004 KA 13-01190.
10-03-2014
The PEOPLE of the State of New York, Respondent, v. Jarad R. MATSULAVAGE, Defendant–Appellant.
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the second degree (Penal Law § 130.45[1] ). Although defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), that waiver does not encompass the denial of his request for youthful offender status because no mention of youthful offender status was made before defendant waived his right to appeal (see People v. Anderson, 90 A.D.3d 1475, 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 ). We conclude, however, that County Court did not abuse its discretion in refusing to grant defendant youthful offender status (see People v. Frontuto, 114 A.D.3d 1271, 1271, 980 N.Y.S.2d 861, lv. denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [July 21, 2014] ; People v. Mix, 111 A.D.3d 1417, 1418, 974 N.Y.S.2d 867 ; 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 ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see Guppy, 92 A.D.3d at 1243, 937 N.Y.S.2d 921 ). Defendant's waiver of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.