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

226
KA 13-01936
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANGEL T.C., DEFENDANT-APPELLANT.


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

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered September 18, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by adjudicating defendant a youthful offender and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of criminal possession of stolen property in the
fourth degree (Penal Law § 165.45 [5]). We reject defendant’s
contention that his waiver of the right to appeal is invalid.
Defendant waived that right “both orally and in writing before
pleading guilty, and [County C]ourt conducted an adequate colloquy to
ensure that the waiver of the right to appeal was a knowing and
voluntary choice” (People v McGrew, 118 AD3d 1490, 1490-1491, lv
denied 23 NY3d 1065 [internal quotation marks omitted]). We conclude,
however, that the waiver does not encompass defendant’s contention
regarding the denial of his request for youthful offender status,
inasmuch as “[n]o mention of youthful offender status was made before
defendant waived his right to appeal during the plea colloquy” (People
v Anderson, 90 AD3d 1475, 1476, lv denied 18 NY3d 991).

     We agree with defendant that he should have been afforded
youthful offender status. Defendant was 16 years old at the time of
the offense and committed the offense when he and his two friends were
walking to a park, saw a vehicle with the keys in the ignition, and
wondered what it would be like to steal the vehicle. Defendant
expressed remorse for his actions, which we conclude were the actions
of an impulsive youth rather than a hardened criminal (see People v
                                 -2-                           226
                                                         KA 13-01936

Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under
the circumstances, we modify the judgment as a matter of discretion in
the interest of justice by adjudicating defendant a youthful offender
(see CPL 470.15 [3] [c]; People v William S., 26 AD3d 867, 868).

     Finally, 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:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
