Opinion
2015-02-6
The PEOPLE of the State of New York, Respondent, v. Percy L. SCOTT, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 16, 2009. The appeal was held by this Court by order entered March 28, 2014, decision was reserved and the matter was remitted to Erie County Court for further proceedings (115 A.D.3d 1342, 983 N.Y.S.2d 386). The proceedings were held and completed. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 16, 2009. The appeal was held by this Court by order entered March 28, 2014, decision was reserved and the matter was remitted to Erie County Court for further proceedings (115 A.D.3d 1342, 983 N.Y.S.2d 386). The proceedings were held and completed.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1] ). We conclude that County Court did not abuse its discretion in refusing to grant defendant youthful offender status ( see People v. Johnson, 109 A.D.3d 1191, 1191–1192, 971 N.Y.S.2d 723, lv. denied22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170; People v. Davis, 84 A.D.3d 1710, 1710, 922 N.Y.S.2d 834, lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender ( cf. People v. Noel, 106 A.D.2d 854, 854–855, 483 N.Y.S.2d 539). Further, although defendant's valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence because he entered the waiver before he was advised of the maximum sentence he could receive ( see People v. Rizek [Appeal No. 1], 64 A.D.3d 1180, 1180, 881 N.Y.S.2d 752, lv. denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101), we nevertheless reject that challenge.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, and WHALEN, JJ., concur.