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

1004
KA 13-01190
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JARAD R. MATSULAVAGE, DEFENDANT-APPELLANT.


KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 4, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sexual act in the
second 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 criminal sexual act in the second degree
(Penal Law § 130.45 [1]). Although defendant knowingly,
intelligently, and voluntarily waived his right to appeal (see People
v Lopez, 6 NY3d 248, 256), that waiver does not encompass the denial
of his request for youthful offender status because no mention of
youthful offender status was made before defendant waived his right to
appeal (see People v Anderson, 90 AD3d 1475, 1475-1476, lv denied 18
NY3d 991). We conclude, however, that County Court did not abuse its
discretion in refusing to grant defendant youthful offender status
(see People v Frontuto, 114 AD3d 1271, 1271, lv denied ___ NY3d ___
[July 21, 2014]; People v Mix, 111 AD3d 1417, 1418; People v Guppy, 92
AD3d 1243, 1243, lv denied 19 NY3d 961), and we decline to exercise
our interest of justice jurisdiction to adjudicate defendant a
youthful offender (see Guppy, 92 AD3d at 1243). Defendant’s waiver of
the right to appeal encompasses his challenge to the severity of the
sentence (see People v Hidalgo, 91 NY2d 733, 737).




Entered:   October 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
