Opinion
10121 Ind. 2634/01
10-17-2019
The PEOPLE of the State of New York, Respondent, v. Luis NUNEZ, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Victorien Wu of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Victorien Wu of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Webber, Moulton, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 23, 2002, as amended July 30, 2010, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.
As the People concede, defendant's guilty plea was invalid because there was no warning about postrelease supervision. Nevertheless, defendant is not entitled to his requested relief of dismissal of the indictment or, in the alternative, replacement of his conviction with a youthful offender adjudication.
Although defendant has served his sentence, dismissal of the indictment would be inappropriate, especially because he has committed a serious crime (see People v. Conceicao , 26 N.Y.3d 375, 385 n, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Allen , 39 N.Y.2d 916, 917–918, 386 N.Y.S.2d 404, 352 N.E.2d 591 [1976] ). His conviction of an armed felony renders him ineligible for youthful offender treatment ( CPL 720.10[2][a][ii] ), and we find no "mitigating circumstances that bear directly upon the manner in which the crime was committed" ( CPL 720.10[3][i] ) This was a gunpoint robbery, in which defendant fired shots (see e. g. People v. Davis , 168 A.D.3d 616, 92 N.Y.S.3d 253 [1st Dept. 2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 267, 124 N.E.3d 756 [2019] ).
Because defendant is not seeking to vacate his plea, but expressly seeks affirmance of his conviction if the requested relief is not granted, we affirm (see People v. Teron , 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016] ).