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

799
KA 12-00047
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DONTE LEE, DEFENDANT-APPELLANT.


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered May 19, 2010. The judgment
convicted defendant, upon his plea of guilty, of gang assault in the
second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of gang assault in the second degree (Penal Law §
120.06), defendant contends that Supreme Court failed to engage in an
adequate colloquy to ensure that his waiver of the right to appeal was
knowing and voluntary and that the court erred in denying his request
for youthful offender status. “Even assuming, arguendo, that the
waiver by defendant of the right to appeal is invalid and thus does
not encompass his challenge to the court’s refusal to adjudicate him a
youthful offender, we nevertheless reject that challenge” (People v
McClellan, 49 AD3d 1201, 1202; see People v Davis, 84 AD3d 1710, 1710,
lv denied 17 NY3d 815). With regard to defendant’s alternative
contention that his sentence is unduly harsh and severe, the People
correctly concede that defendant’s purported waiver of the right to
appeal would not encompass that contention in any event, inasmuch as
defendant waived the right to appeal before the court advised him of
the maximum possible sentence he could receive (see People v Allen, 93
AD3d 1340, 1341, lv denied 19 NY3d 956; People v Farrell, 71 AD3d
1507, 1507, lv denied 15 NY3d 804). We nevertheless conclude that the
sentence is not unduly harsh or severe.



Entered:   July 19, 2013                           Frances E. Cafarell
                                                   Clerk of the Court
