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

771
KA 14-00093
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MAXWELL B. MOHAWK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered July 1, 2013. The judgment convicted defendant,
upon his plea of guilty, of assault 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 assault in the first degree (Penal Law
§ 120.10 [1]). As a preliminary matter, we agree with defendant that
“ ‘the 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 him] in an adequate colloquy to ensure that the waiver
of the right to appeal was a knowing and voluntary choice’ ” (People v
Benson, 141 AD3d 1171, 1172; see People v Cooper, 136 AD3d 1397, 1398,
lv denied 27 NY3d 1067). Defendant contends that the court abused its
discretion in refusing to grant him youthful offender status. We note
that we would address that contention even in the presence of a valid
waiver of the right to appeal because the issue was specifically
excluded from the purported waiver (see People v Johnson, 50 AD3d
1567, 1567). We nonetheless conclude that defendant’s contention is
without merit. The court properly considered the gravity of the
offense, i.e., defendant shot the victim multiple times in the upper
torso, which caused serious, life-threatening injuries, as well as
defendant’s lack of remorse (see People v Gibson, 134 AD3d 1517, 1518-
1519, lv denied 27 NY3d 1069; People v Driggs, 24 AD3d 888, 889).
Furthermore, upon our review of the record, we see no reason to
exercise our own discretion in the interest of justice to adjudicate
defendant a youthful offender (cf. People v Amir W., 107 AD3d 1639,
1640-1641). Finally, the sentence is not unduly harsh or severe.

Entered:    September 30, 2016                     Frances E. Cafarell
                                                   Clerk of the Court
