MC GREW, JR., THOMAS E., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
741
KA 13-00882
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
THOMAS E. MCGREW, JR., DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered April 25, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted course of sexual
conduct against a child 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 attempted course of sexual conduct against a child
in the second degree (Penal Law §§ 110.00, 130.80 [1] [a]), defendant
contends that his waiver of the right to appeal was invalid because it
was not knowing, voluntary and intelligent, and that County Court
abused its discretion in denying his request to adjudicate him a
youthful offender.
Initially, we reject the People’s contention that defendant was
required to preserve for our review his challenge to the voluntariness
of his waiver of the right to appeal (see People v Lopez, 52 AD3d 852,
853; People v Hoover, 37 AD3d 298, 299-300). Contrary to defendant’s
contention, however, the record establishes that his waiver was valid.
Defendant waived his right to appeal both orally and in writing before
pleading guilty, and the court conducted “ ‘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). Moreover, the record demonstrates that “ ‘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
the court abused its discretion in denying his request for youthful
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KA 13-00882
offender status (see People v Johnson, 111 AD3d 1391, 1391; People v
Rush, 94 AD3d 1449, 1449-1450, lv denied 19 NY3d 967; People v
Farewell, 90 AD3d 1502, 1502, lv denied 18 NY3d 957).
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court