People v Scott

People v Scott 2015 NY Slip Op 01030 Decided on February 6, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 6, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.
72 KA 12-02053

[*1]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 AD3d 1342). 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.

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 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 AD3d 1191, 1191-1192, lv denied 22 NY3d 997; People v Davis, 84 AD3d 1710, 1710, lv denied 17 NY3d 815), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (cf. People v Noel, 106 AD2d 854, 854-855). 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 AD3d 1180, 1180, lv denied 13 NY3d 862), we nevertheless reject that challenge.

Entered: February 6, 2015

Frances E. Cafarell

Clerk of the Court