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

967
KA 12-01162
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHON JOHNSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 3, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery 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 robbery in the first degree (Penal Law §
160.15 [3]). We agree with defendant that his waiver of the right to
appeal is invalid because “the minimal inquiry made by County Court
was insufficient to establish that the court engage[d] the defendant
in an adequate colloquy to ensure that the waiver of the right to
appeal was a knowing and voluntary choice” (People v Box, 96 AD3d
1570, 1571, lv denied 19 NY3d 1024 [internal quotation marks omitted];
see People v Hamilton, 49 AD3d 1163, 1164; People v Brown, 296 AD2d
860, 860, lv denied 98 NY2d 767). Indeed, we are unable to determine
based on the record before us whether the court ensured “that the
defendant understood that the right to appeal is separate and distinct
from those rights automatically forfeited upon a plea of guilty”
(People v Lopez, 6 NY3d 248, 256). Nevertheless, we reject
defendant’s contention that the court abused its discretion in denying
his request for youthful offender status (see People v Guppy, 92 AD3d
1243, 1243, lv denied 19 NY3d 961; People v Potter, 13 AD3d 1191,
1191, lv denied 4 NY3d 889). The court relied on, inter alia, the
fact that defendant engaged in dangerous gratuitous violence in
committing the subject crime. We decline to exercise our interest of
justice jurisdiction to adjudicate defendant a youthful offender (cf.
People v Shrubsall, 167 AD2d 929, 930-931), and we reject defendant’s
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                                                      KA 12-01162

challenge to the severity of the sentence.




Entered:   September 27, 2013                Frances E. Cafarell
                                             Clerk of the Court
