                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     107160
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

KYLE E. SIMON,
                    Appellant.
________________________________


Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(George J. Hoffman of counsel), for appellant.

      Mary E. Rain, District Attorney, Canton (Marquetta Christy
of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered August 12, 2014, convicting
defendant upon his plea of guilty of the crime of attempted rape
in the second degree.

      Defendant pleaded guilty to the reduced charge of attempted
rape in the second degree and waived his right to appeal. County
Court agreed to place defendant on interim probation for one
year, at which point the court would consider youthful offender
status and impose a sentence. Prior to the sentencing date, the
Probation Department submitted a notification of violation of
interim probation which, among other things, detailed various
alleged violations of conditions of interim probation by
                              -2-                  107160

defendant, including his positive test result for alcohol use,
failure to report to probation and leaving the jurisdiction
without permission. Thereafter, County Court found that
defendant failed to comply with all the terms of his interim
probation, declined to adjudicate him a youthful offender and
sentenced him to six months in jail followed by 10 years of
probation. Defendant appeals.

      We affirm. Contrary to defendant's contention, his waiver
of the right to appeal was valid (see People v McKenzie, 136 AD3d
1120, 1121 [2016], lv denied 27 NY3d 1002 [2016]). The record
reflects that County Court advised defendant that the waiver of
the right to appeal was separate and distinct from those rights
forfeited by his guilty plea. Furthermore, defendant
acknowledged that he understood the nature of the waiver of the
right to appeal, discussed its consequences with his attorney and
executed a detailed written waiver in open court. As such,
defendant's valid waiver of appeal precludes his contentions that
County Court abused its discretion in declining to treat him as a
youthful offender (see People v Roberts, 134 AD3d 1352, 1352
[2015]; People v Wright, 123 AD3d 1241, 1241 [2014]) and that the
sentence imposed was harsh and excessive (see People v
Brasmeister, 136 AD3d 1122, 1123 [2016], lv denied 27 NY3d 993
[2016]).

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
