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

639
KA 15-01803
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICOLAS WEATHINGTON, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Erie County Court (Sheila A.
DiTullio, J.), rendered July 22, 2014. Defendant was resentenced
following his conviction, upon his plea of guilty, of robbery in the
second degree and burglary in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of robbery in the second degree
(Penal Law § 160.10 [1]) and burglary in the second degree (§ 140.25
[2]) and, in appeal No. 2, he appeals from the resentence on that
conviction. We note at the outset that, inasmuch as the sentence in
appeal No. 1 was superseded by the resentence in appeal No. 2, the
appeal from the judgment in appeal No. 1 insofar as it imposed
sentence must be dismissed (see People v Primm, 57 AD3d 1525, 1525, lv
denied 12 NY3d 820).

     We otherwise affirm the judgment in appeal No. 1 and affirm the
resentence in appeal No. 2. Contrary to defendant’s contention, the
record establishes that he knowingly, voluntarily and intelligently
waived the right to appeal, and that waiver encompasses his challenge
to the severity of the resentence in this case (see People v Lopez, 6
NY3d 248, 256; People v Matsulavage, 121 AD3d 1581, 1581, lv denied 24
NY3d 1045; People v O’Harrow, 107 AD3d 1601, 1601-1602, lv denied 21
NY3d 1076). “Defendant waived his right to appeal both orally and in
writing, and the record demonstrates that County Court engage[d] . . .
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice” (People v Burt,
101 AD3d 1729, 1730, lv denied 20 NY3d 1060 [internal quotation marks
omitted]). As the People correctly concede, however, no mention of
                                 -2-                           639
                                                         KA 15-01803

youthful offender status was made on the record before defendant
waived his right to appeal, and thus defendant’s valid waiver does not
encompass his challenge to the court’s denial of youthful offender
status (see People v Gibson, 134 AD3d 1517, 1518; People v Anderson,
90 AD3d 1475, 1476, lv denied 18 NY3d 991). We nonetheless conclude
that the court did not abuse its discretion in refusing to grant
defendant youthful offender status (see People v Digges, 10 AD3d 769,
769-770; People v Mettler, 259 AD2d 834, 835). Despite the existence
of some factors weighing in favor of such an adjudication, the record
establishes that defendant, in concert with other individuals, engaged
in a planned home invasion burglary and robbery of an 84-year-old
woman during which defendant grabbed the victim by her face and mouth,
causing her pain, restrained her against the rocking chair in which
she was sitting, and demanded to know the location of her money (see
Digges, 10 AD3d at 769-770; Mettler, 259 AD2d at 835). Defendant and
the other individuals subsequently used the victim’s credit card to
make several fraudulent purchases. In addition, under these
circumstances, we decline to exercise our interest of justice
jurisdiction to adjudicate defendant a youthful offender (see e.g.
People v Phillips, 289 AD2d 1021, 1022).




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
