Opinion
994 KA 18-01614
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Jeffrey L. BARR, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the first degree ( Penal Law § 120.10 [1] ). Contrary to defendant's initial contention, the Court of Appeals has rejected the assertion that waivers of the right to appeal should be invalid per se (see People v. Thomas , 34 N.Y.3d 545, 557-558, 558 n. 1, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Seaberg , 74 N.Y.2d 1, 8-9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence (see People v. Viehdeffer , 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020] ; People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe. Furthermore, we conclude that County Court did not abuse its discretion in refusing to grant defendant youthful offender status (see People v. Rice , 175 A.D.3d 1826, 1826, 109 N.Y.S.3d 808 [4th Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 511, 141 N.E.3d 467 [2020] ; People v. Macon , 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019] ), and we decline to exercise our discretion in the interest of justice to adjudicate defendant a youthful offender (see Rice , 175 A.D.3d at 1826, 109 N.Y.S.3d 808 ).