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

505
KA 12-02113
PRESENT: SMITH, J.P., CENTRA, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAKOTA W. BARNES, ALSO KNOWN AS “KNEES,”
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP 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 Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 13, 2010. The appeal was held by this
Court by order entered July 3, 2014, decision was reserved and the
matter was remitted to Supreme Court, Erie County, for further
proceedings (119 AD3d 1374). 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 manslaughter in the first degree (Penal Law
§ 125.20 [1]). We conclude that Supreme Court did not abuse its
discretion in refusing to grant defendant youthful offender status
(see People v Frontuto, 114 AD3d 1271, 1271, lv denied 23 NY3d 1036;
People v Johnson, 109 AD3d 1191, 1191-1192, lv denied 22 NY3d 997),
and we decline to exercise our interest of justice jurisdiction to
adjudicate defendant a youthful offender (see People v Guppy, 92 AD3d
1243, 1243, lv denied 19 NY3d 961). Defendant’s valid waiver of the
right to appeal “does not encompass his challenge to the severity of
the sentence because no mention was made on the record during the
course of the allocution concerning the waiver of defendant’s right to
appeal with respect to his conviction that he was also waiving his
right to appeal any issue concerning the severity of the sentence”
(People v Ayala, 117 AD3d 1447, 1448, lv denied 23 NY3d 1033 [internal
quotation marks omitted]; see People v Maracle, 19 NY3d 925, 928).
Nevertheless, we reject that challenge.



Entered:    May 1, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
