Opinion
14369 Ind. No. 48/18 Case No. 2019-2073
10-14-2021
The PEOPLE of the State of New York, Respondent, v. Elisah BROWN, Defendant–Appellant.
Marianne Karas, Thornwood, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Marianne Karas, Thornwood, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Gische, J.P., Moulton, Gonza´lez, Kennedy, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 27, 2018, convicting defendant, upon his plea of guilty, of attempted murder in the second degree and conspiracy in the second degree, and sentencing him to an aggregate term of 10 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, including a youthful offender determination, and otherwise affirmed.
Defendant's challenges to the voluntariness of his plea do not come within the narrow exception to the preservation requirement (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to review these unpreserved claims in the interest of justice. As an alternative holding, we find that the record as a whole establishes that the plea was knowingly, intelligently and voluntarily made. The court and prosecutor's accurate description of defendant's sentencing exposure (see e. g . People v. Pagan, 297 A.D.2d 582, 747 N.Y.S.2d 174 [1st Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ), and the court's warning that the plea offer would expire (see e. g. People v. Luckey, 149 A.D.3d 414, 50 N.Y.S.3d 368 [1st Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ), were not coercive under the circumstances.
The People concede that defendant is entitled to be resentenced with an express youthful offender determination (see People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). Defendant's remaining arguments are rendered academic by this disposition, or are without merit.