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

578
KA 10-02115
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

BRIAN K. BELL, JR., DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered September 16, 2008. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree.

     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 sexual abuse in the first degree (Penal
Law § 130.65 [3]). As the People correctly concede, defendant’s
waiver of the right to appeal is invalid because County Court did not
ensure “that the defendant 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). Although
defendant’s contention that the court abused its discretion in failing
to adjudicate him a youthful offender is not encompassed by the
invalid waiver of the right to appeal, we nevertheless reject that
contention. “ ‘The determination . . . whether to grant . . .
youthful offender status rests within the sound discretion of the
court and depends upon all the attending facts and circumstances of
the case’ ” (People v Dawson, 71 AD3d 1490, 1490, lv denied 15 NY3d
749). Here, the record reflects that the court considered the
relevant facts and circumstances in denying defendant’s request for
youthful offender status, including the mitigating factors cited by
defense counsel at sentencing. Although a contrary ruling would not
have been unreasonable, we cannot conclude that the court abused its
discretion in denying defendant’s request.


Entered:    April 27, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
