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

146
KA 12-01525
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JAYME I. FRONTUTO, 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 5, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and unlawful possession of marihuana.

     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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and unlawful possession of
marihuana (§ 221.05). As the People correctly concede, because “[n]o
mention of youthful offender status was made before defendant waived
his right to appeal during the plea colloquy” (People v Anderson, 90
AD3d 1475, 1476, lv denied 18 NY3d 991), defendant’s waiver of the
right to appeal does not encompass his contention regarding County
Court’s denial of his request for youthful offender status. We
nevertheless reject defendant’s contention that the court abused its
discretion in denying that request (see People v Lugo, 87 AD3d 1403,
1405, lv denied 18 NY3d 860). The remedial measures of People v
Rudolph (21 NY3d 497, 499) do not apply to the circumstances of this
case.




Entered:   February 14, 2014                       Frances E. Cafarell
                                                   Clerk of the Court
