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

1067
KA 08-01544
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERALD ANDERSON, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, FOR DEFENDANT-APPELLANT.

GERALD ANDERSON, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered October 18, 2007. The judgment
convicted defendant, upon his plea of guilty, of manslaughter 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 manslaughter in the first degree (Penal Law
§ 125.20 [1]). Contrary to defendant’s contention, his waiver of the
right to appeal was knowingly, intelligently, and voluntarily entered
(see People v Graham, 77 AD3d 1439, lv denied 15 NY3d 920; see
generally People v Lopez, 6 NY3d 248, 256). We agree with defendant,
however, that the waiver does not encompass his further contention
concerning the denial of his request for youthful offender status. No
mention of youthful offender status was made before defendant waived
his right to appeal during the plea colloquy. Under those
circumstances, we conclude that defendant did not knowingly waive his
right to appeal with respect to Supreme Court’s denial of the request
by defendant for youthful offender status at sentencing (see generally
People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr,
303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d
944). We reject defendant’s contention that the court abused its
discretion in denying his request for youthful offender status,
however, and we decline to exercise our interest of justice
jurisdiction to adjudicate him a youthful offender (see People v
Jock, 68 AD3d 1816, lv denied 14 NY3d 801).

     Defendant failed to preserve for our review his challenge to the
factual sufficiency of the plea allocution (see People v Lopez, 71
                                 -2-                          1067
                                                         KA 08-01544

NY2d 662, 665; People v Moorer, 63 AD3d 1590, lv denied 13 NY3d 837),
and this case does not fall within the rare exception to the
preservation requirement (see Lopez, 71 NY2d at 666). Defendant
“waived his right to appeal before [the court] advised him of the
potential periods of imprisonment that could be imposed,” and thus his
challenge to the severity of the sentence also is not encompassed by
the waiver of the right to appeal (People v Mingo, 38 AD3d 1270, 1271;
see People v Martinez, 55 AD3d 1334, lv denied 11 NY3d 927). We
conclude, however, that the sentence is not unduly harsh or severe.

     The remainder of defendant’s contentions are raised in his pro se
supplemental brief. He contends that his statement to the police
should have been suppressed because there was no Miranda waiver and no
probable cause for the arrest, and because he requested but was not
afforded counsel before making the statement. There is no showing in
the record, however, that defendant moved to suppress his statement
and, even if he had so moved, the valid waiver of the right to appeal
would have encompassed any suppression ruling (see People v Kemp, 94
NY2d 831, 833; People v Schenk, 77 AD3d 1417, lv denied 15 NY3d 924,
16 NY3d 836). In addition, by pleading guilty, defendant forfeited
his contention that he was denied a fair trial by preindictment
prosecutorial misconduct, i.e., the prosecutor’s failure to notify him
of the grand jury proceeding and the prosecutor’s defective grand jury
instructions (see People v Oliveri, 49 AD3d 1208, 1209).

     Next, we reject defendant’s contention that the felony complaint
was defective. The felony complaint was superseded by the indictment
to which defendant pleaded guilty, and he therefore may not challenge
the felony complaint (see People v Black, 270 AD2d 563, 564-565).
Although defendant also contends that the evidence before the grand
jury was legally insufficient, we note that defendant’s contention is
foreclosed by virtue of his guilty plea (see People v Hansen, 95 NY2d
227, 233). Finally, to the extent that defendant’s contention that he
was denied effective assistance of counsel survives his guilty plea
and valid waiver of the right to appeal (see People v Jackson, 85 AD3d
1697, 1699), that contention lacks merit (see generally People v Ford,
86 NY2d 397, 404). We have reviewed the remaining contentions in
defendant’s pro se supplemental brief and conclude that they are
without merit.




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
