People v Cory T. |
2009 NY Slip Op 00911 [59 AD3d 1063] |
February 6, 2009 |
Appellate Division, Fourth Department |
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
As corrected through Wednesday, April 1, 2009 |
The People of the State of New York, Respondent, v Cory T.,
Appellant. |
—[*1]
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), for
defendant-appellant.
Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for
respondent.
Appeal from a judgment and an adjudication the Erie County Court (Michael L. D'Amico,
J.), rendered August 8, 2006. Defendant was convicted upon his plea of guilty of reckless
endangerment in the first degree and attempted robbery in the third degree, and defendant was
adjudicated a youthful offender upon his plea of guilty of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,
the conviction on counts three and four of the superior court information is deemed vacated and
replaced by a youthful offender finding, and the sentences of imprisonment of 11/3
to 4 years imposed on counts three and four of the superior court information are directed to run
concurrently with the sentence imposed on count one of the superior court information, and the
adjudication on count one of the superior court information is modified on the law by directing
that the sentence imposed on count one of the superior court information shall run concurrently
with the sentences imposed on counts three and four of the superior court information and as
modified the adjudication is affirmed, and the matter is remitted to Erie County Court for further
proceedings on count two of the superior court information in accordance with the following
memorandum: Defendant appeals from a youthful offender adjudication based upon his plea of
guilty of robbery in the first degree (Penal Law § 160.15 [3]) and from a judgment
convicting him upon his plea of guilty of reckless endangerment in the first degree (§
120.25) and attempted robbery in the third degree (§§ 110.00, 160.05). As the
People correctly concede, the sentence imposed pursuant to the plea agreement is illegal. "Where
an eligible youth is convicted of two or more crimes set forth in separate counts of an accusatory
instrument . . . , the court must not find him [or her] a youthful offender with
respect to any such conviction . . . unless it finds him [or her] a youthful offender
with respect to all such convictions" (CPL 720.20 [2]; People v Christopher T., 48 AD3d 1131, 1132 [2008]; People v
Huther, 78 AD2d 1011 [1980]). Here, defendant was convicted of "two or more crimes set
forth in separate counts" of the superior court information (SCI) (CPL 720.20 [2]). Thus, upon
adjudicating him a youthful offender with respect to robbery in the first degree under count one
of the SCI, County Court was required to adjudicate defendant a youthful offender with respect
to the remaining counts. Furthermore, having adjudicated defendant a youthful offender, the
court "was without authority to impose consecutive sentences in excess of four years"
(People v Ralph W.C., 21 [*2]AD3d 904, 905 [2005];
see Penal Law § 60.02 [2]; § 70.00 [2] [e]). We therefore reverse the
judgment and modify the adjudication accordingly.
We note in addition that the court failed to sentence defendant with respect to count two of
the SCI, charging him with criminal possession of stolen property in the fifth degree (Penal Law
§ 165.40), despite the fact that during the plea colloquy defendant admitted each element
of that crime. We further note, however, that both the written waiver of indictment and the
presentence report contain notations striking that count. It is thus unclear whether the court
mistakenly failed to sentence defendant with respect to criminal possession of stolen property in
the fifth degree, or whether that count was dismissed following the entry of defendant's guilty
plea. We therefore remit the matter to County Court for further proceedings on count two of the
SCI consistent with our decision. Present—Scudder, P.J., Martoche, Smith, Green and
Gorski, JJ.