Opinion
2014-04-29
The PEOPLE of the State of New York, Respondent, v. Jacquese HENNING, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lauren Springer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Lauren Springer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RICHTER, CLARK, JJ.
Judgments, Supreme Court, New York County (Michael J. Obus, J.), rendered September 27, 2012, convicting defendant, upon his pleas of guilty, of attempted robbery in the second degree (two counts) and grand larceny in the fourth degree, and sentencing him to an aggregate term of three years, unanimously affirmed.
Initially, we find that the record does not establish a valid waiver of defendant's right to appeal. However, we reject his claims on the merits.
Contrary to defendant's contention, the record reveals that the court considered but rejected youthful offender treatment ( compare People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). At a calendar appearance to discuss a possible disposition of the charges, the court determined that defendant was ineligible as a matter of law. That determination was correct, because defendant had already been adjudicated a youthful offender in a felony case, and was thus an ineligible youth ( seeCPL 720.10[2][c]; People v. Cecil Z., 57 N.Y.2d 899, 456 N.Y.S.2d 753, 442 N.E.2d 1264 [1982] ). To the extent defendant is arguing that a sequentiality requirement similar to that contained in the predicate felony offender statutes ( see e.g. Penal Law § 70.06[1][b][ii] ) should apply, that argument is contrary to the plain language of CPL 720.10(2)(c).
We perceive no basis for reducing the sentence.