         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
842
KA 10-01465
PRESENT: SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMEL LYONS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered December 8, 2009. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that his waiver of the right to appeal was
invalid. We reject that contention. Despite defendant’s contention
to the contrary, the record “establish[es] that [he] understood that
the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d
248, 256; see People v Graham, 77 AD3d 1439, lv denied 15 NY3d 920).
Defendant further contends that his waiver of the right to appeal is
invalid and unenforceable because the plea “agreement was coercive and
it did not contain any favorable terms for” him. Although defendant
is correct to the extent that he may be construed to contend that
County Court was required to inform him of the sentencing range before
he waived his right to appeal (see People v Hidalgo, 91 NY2d 733, 737;
People v Bryan, 78 AD3d 1692, lv denied 16 NY3d 829), the record
establishes that the court did so. Furthermore, the record belies
defendant’s contention that the plea agreement was “coercive and did
not contain any favorable terms for” him. Indeed, the court promised
to adjudicate defendant a youthful offender if he complied with
certain conditions between the time of the plea and the time of
sentencing, which would have reduced defendant’s maximum term of
incarceration if he had complied with the conditions set by the court,
although the record establishes that defendant failed to do so. We
have considered defendant’s remaining contentions concerning the
alleged invalidity of his waiver of the right to appeal and conclude
                                 -2-                           842
                                                         KA 10-01465

that they are without merit. “The valid waiver of the right to appeal
encompasses defendant’s contention concerning the [ultimate] denial of
his request for youthful offender status” (People v Elshabazz, 81 AD3d
1429, 1429, lv denied 16 NY3d 858; see People v Capps, 63 AD3d 1632,
lv denied 13 NY3d 795; People v Porter, 55 AD3d 1313, lv denied 11
NY3d 899), as well as his contention concerning the severity of his
sentence (see Lopez, 6 NY3d at 256; People v VanDeViver, 56 AD3d 1118,
1119, lv denied 11 NY3d 931, 12 NY3d 788).




Entered:   July 1, 2011                        Patricia L. Morgan
                                               Clerk of the Court
