BURT, JIBRIL A., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1324
KA 11-02185
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JIBRIL A. BURT, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered September 29, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the second degree (Penal Law § 140.25
[2]), defendant contends that his waiver of the right to appeal is
unenforceable and that he should have been afforded youthful offender
treatment. We reject those contentions. Defendant waived his right
to appeal both orally and in writing, and the record demonstrates that
County 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 Glasper, 46 AD3d 1401, 1401, lv denied
10 NY3d 863; see People v Korber, 89 AD3d 1543, 1543, lv denied 19
NY3d 864). Further, “the record as a whole, including the written
waiver of the right to appeal, establishes ‘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 Jones, 96 AD3d 1637, 1637, lv denied 19 NY3d 1103). Defendant’s
valid waiver of the right to appeal encompasses his contention that he
should have been afforded youthful offender treatment (see People v
Rush, 94 AD3d 1449, 1449-1450, lv denied 19 NY3d 967). Finally, there
is no merit to defendant’s contention that the court failed to rule on
his request for such treatment inasmuch as the court’s comments at
sentencing establish that the request was denied.
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court