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

1293
KA 09-01271
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERALD GIBSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.) rendered March 17, 2009. The appeal was held by this
Court by order entered November 14, 2014, decision was reserved and
the matter was remitted to Supreme Court, Erie County, for further
proceedings (122 AD3d 1331). The proceedings were held and completed.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of attempted assault in the
second degree (Penal Law §§ 110.00, 120.05 [2]) and, in appeal No. 2,
he appeals from a judgment convicting him upon his plea of guilty of
manslaughter in the first degree (§ 125.20). We previously held the
cases, reserved decision, and remitted the matters to Supreme Court to
determine whether to adjudicate defendant a youthful offender in both
matters (People v Gibson, 122 AD3d 1331, 1332; People v Gibson, 122
AD3d 1332). Upon remittal, the court declined to adjudicate defendant
a youthful offender, and we now affirm.

     Initially, we note that “no mention was made on the record during
the course of the allocution concerning the waiver of defendant’s
right to appeal his conviction that he was also waiving his right to
appeal the harshness of his sentence” and the determination to deny
him youthful offender status (People v Pimentel, 108 AD3d 861, 862, lv
denied 21 NY3d 1076, citing People v Maracle, 19 NY3d 925, 928; see
People v Anderson, 90 AD3d 1475, 1476, lv denied 18 NY3d 991). Thus,
defendant’s waiver of the right to appeal does not encompass his
challenge to the severity of the sentence and the denial of youthful
offender status (see People v Avellino, 119 AD3d 1449, 1449-1450;
Anderson, 90 AD3d at 1476). Contrary to defendant’s contention in
                                 -2-                          1293
                                                         KA 09-01271

these appeals following remittal, however, we conclude that the
sentence in each appeal is not unduly harsh or severe, and we further
conclude that the court did not abuse its discretion in declining to
adjudicate him a youthful offender (see People v Guppy, 92 AD3d 1243,
1243, lv denied 19 NY3d 961). Furthermore, we decline to exercise our
interest of justice jurisdiction to adjudicate defendant a youthful
offender (cf. People v Shrubsall, 167 AD2d 929, 930-931). The record
establishes that two separate violent incidents were involved, one in
which defendant aided a codefendant who stabbed the victim and
inflicted serious injuries, and the other in which defendant killed a
different young man with whom he had been feuding for months. In the
latter incident, defendant took the handgun away from another
participant in the crime who was refusing to shoot the victim and shot
the victim himself.




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
