DAIGLER, PRESTON S., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
382
KA 15-01729
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
PRESTON S. DAIGLER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 14, 2015. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted robbery in the second degree
(Penal Law §§ 110.00, 160.10 [2] [a]). At the time of the plea,
defendant waived his right to appeal, and County Court indicated that
it would consider whether to grant him youthful offender status after
reviewing a presentence investigation. Prior to sentencing, defense
counsel submitted a letter asking the court to adjudicate defendant a
youthful offender. The court reviewed the presentence investigation
report and adjourned sentencing to review other materials, including
recordings of telephone calls that defendant made from the jail prior
to pleading guilty, in which he discussed his intent not to abide by
the conditions of probation or otherwise alter his ways in the future.
The court thereafter declined to grant defendant youthful offender
status.
Contrary to defendant’s initial contention, the record
establishes that he knowingly, voluntarily, and intelligently waived
the right to appeal (see generally People v Bailey, 137 AD3d 1620,
1621, lv denied 27 NY3d 1128). Furthermore, because the court
discussed the possibility of adjudicating defendant a youthful
offender when he waived the right to appeal, defendant’s valid waiver
encompasses his challenge to the court’s denial of his request at the
time of sentencing for such an adjudication (cf. People v Weathington
[appeal No. 2], 141 AD3d 1173, 1174, lv denied 28 NY3d 975; People v
-2- 382
KA 15-01729
Gibson, 134 AD3d 1517, 1518, lv denied 27 NY3d 1069). We do not
address defendant’s contention that his waiver of the right to appeal
is overbroad because that contention “is raised for the first time in
defendant’s reply brief and thus is not properly before us” (People v
Jones, 300 AD2d 1119, 1120, lv denied 2 NY3d 801; see People v Harris,
129 AD3d 1522, 1525, lv denied 27 NY3d 998). We have considered
defendant’s remaining challenges to his waiver of the right to appeal
and conclude that they are without merit. Consequently, defendant’s
“valid waiver of the right to appeal . . . forecloses appellate review
of [the] sentencing court’s discretionary decision to deny youthful
offender status” to defendant inasmuch as the sentencing court
considered such status (People v Pacherille, 25 NY3d 1021, 1024).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court