Opinion
927 KA 18-02093
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Taheeb DOUGLAS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, 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, inter alia, two counts of criminal sexual act in the second degree ( Penal Law § 130.45 [1] ). Preliminarily, we note that defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-568, 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. Johnson , 182 A.D.3d 1036, 1036, 120 N.Y.S.3d 902 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 849, 151 N.E.3d 530 [2020] ), and that the better practice is for County Court "to use the Model Colloquy, which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). To the extent that defendant contends that the court abused its discretion in declining to grant him youthful offender status, we reject that contention (see Johnson , 182 A.D.3d at 1036, 120 N.Y.S.3d 902 ). We decline defendant's request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v. Nicorvo [Appeal No. 2], 177 A.D.3d 1408, 1409, 114 N.Y.S.3d 541 [4th Dept. 2019] ).