People v. Hesterbey , 994 N.Y.S.2d 421 ( 2014 )

People v Hesterbey (2014 NY Slip Op 07367)

People v Hesterbey

2014 NY Slip Op 07367

Decided on October 29, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.

2013-00537
(Ind. No. 5840/12)

[*1]The People of the State of New York, respondent,

v

Elijah Hesterbey, appellant.

Lynn W. L. Fahey, New York, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Michael C. Zebrowski on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered December 19, 2012, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257; People v Brown, _____AD3d_____ , 2014 NY Slip Op 06101 [2d Dept 2014]), and does not bar review of the defendant's contention that the Supreme Court improvidently exercised its discretion in denying him youthful offender status (cf. People v Nye, 299 AD2d 371, 372). " The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case'" (People v Mullings, 83 AD3d 871, 872, quoting People v Ortega, 114 AD2d 912, 912; see People v Ciminera, 202 AD2d 684; People v Carter, 143 AD2d 925, 926). Here, we find no basis for disturbing the Supreme Court's determination to deny youthful offender status to the defendant.

SKELOS, J.P., DICKERSON, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court