           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

72
KA 12-02053
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

PERCY L. SCOTT, DEFENDANT-APPELLANT.


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
AD3d 1342). The proceedings were held and completed.

     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
