People v. Colon

2021 NY Slip Op 00264

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2021
• Docket: Appeal No. 12881 Case No. 2018-2303 SCI No. 2137-17
• Status: Published

Opinion

People v Colon (2021 NY Slip Op 00264)

People v Colon

2021 NY Slip Op 00264

Decided on January 19, 2021

Appellate Division, First 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 and Entered: January 19, 2021
Before: Webber, J.P., Mazzarelli, González, Scarpulla, Shulman, JJ.

Appeal No. 12881 Case No. 2018-2303 SCI No. 2137-17

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

v

Kervin Colon, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Antonio Villaamil of counsel), for

appellant.

Darcel D. Clark, District Attorney, New York (Daniel J. Young of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Bahaati E. Pitt, J.), rendered November 6, 2017, convicting defendant, upon his plea of guilty, of attempted assault in the first degree, and sentencing him to a term of five years, unanimously affirmed.

Contrary to defendant's contention, the court made a youthful offender determination during the sentencing proceeding (see CPL 720.20; People v Rudolph, 21 NY3d 497 [2013]). At sentencing, the court referred to its denial of a request for such treatment made by counsel during the plea proceeding. However, the statements the court made when imposing sentence, viewed as a whole, indicated that it was making a new determination, in which it adhered to its prior decision after having reviewed the presentence report. Accordingly, a remand is unnecessary.

Defendant's challenge to the alleged excessiveness of his sentence is barred by his valid waiver of the right to appeal. Any ambiguity in the court's oral colloquy with defendant was clarified by the written waiver, which defendant acknowledged having discussed with his counsel before signing it in open court in counsel's presence. Regardless of whether defendant made a valid appeal waiver, we perceive no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 19, 2021