                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: May 21, 2015                        106512
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

JACQUELINE SMALLS,
                    Appellant.
________________________________


Calendar Date:   March 31, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ.

                               __________


      Keeley A. Maloney, Albany, for appellant, and appellant pro
se.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                               __________


      Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered December 9, 2013 in Schenectady County, convicting
defendant upon her plea of guilty of the crime of manslaughter in
the first degree.

      Following the stabbing death of her boyfriend, defendant
was indicted and charged with murder in the second degree and
menacing in the second degree. In full satisfaction of those
charges, defendant thereafter pleaded guilty to manslaughter in
the first degree and waived her right to appeal. Supreme Court
subsequently imposed the agreed-upon sentence of 15 years in
prison followed by a period of postrelease supervision that was
consistent with the terms of the plea agreement. Defendant now
appeals.
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      We affirm. Defendant primarily contends that she should
have received an indeterminate sentence pursuant to Penal Law
§ 60.12. This statute permits a sentencing court otherwise
required to impose a determinate sentence under Penal Law § 70.02
to impose an indeterminate sentence if, following a hearing, the
court concludes that "(a) the defendant was the victim of
physical, sexual or psychological abuse by the victim or intended
victim of such offense, (b) such abuse was a factor in causing
the defendant to commit such offense and (c) the victim or
intended victim of such offense was a member of the same family
or household as the defendant" (Penal Law § 60.12 [1]). To the
extent that defendant's argument in this regard may be construed
as a challenge to the severity of her sentence, such claim is
precluded by her valid and uncontested waiver of the right to
appeal (see People v White, 119 AD3d 1286, 1287 [2014], lv denied
24 NY3d 1222 [2015]; People v Munger, 117 AD3d 1343, 1343 [2014],
lv denied 23 NY3d 1040 [2014]). Assuming, without deciding, that
this particular argument survives defendant's waiver of the right
to appeal, a review of the record reveals that defendant failed
to seek such relief from Supreme Court and, therefore, this issue
has not been preserved for our review (see CPL 470.05 [2]).

      There indeed are instances where the sentencing court is
under an affirmative – and statutorily imposed – obligation to
consider whether a criminal defendant is eligible for alternative
sentencing treatment (see e.g. CPL 720.20 [1]) and, in such
cases, the statutory requirement cannot be dispensed with – even
if the defendant fails to request and/or purports to waive such
treatment (see e.g. People v Rudolph, 21 NY3d 497, 499-501
[2013]). To our analysis, however, Penal Law § 60.21 imposes no
such affirmative requirement. Rather, the statute vests the
sentencing court with the discretion to impose an indeterminate
sentence if, following a hearing, certain enumerated criteria are
met. Here, defendant failed to seek such relief from Supreme
Court, agreeing instead to plead guilty with the understanding
that she would receive a determinate sentence of 15 years in
prison – a sentence that she readily concedes is legal. Under
these circumstances, defendant's failure to request that Supreme
Court consider imposing an alternative sentence under Penal Law
§ 60.12 is fatal to her claim, and we discern no basis upon which
to take corrective action in the interest of justice. Finally,
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to the extent that defendant's pro se brief may be read as
challenging the legal sufficiency of the evidence underlying the
indictment, this issue was forfeited by virtue of defendant's
guilty plea (see People v Cole, 118 AD3d 1098, 1099-1100 [2014];
People v Caban, 89 AD3d 1321, 1322 [2011]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
