Opinion
1075 KA 16–00217
12-21-2018
The PEOPLE of the State of New York, Respondent, v. William MIDDLEBROOKS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of, inter alia, three counts of robbery in the first degree ( Penal Law § 160.15 [4 ] ) and, as a condition of the plea, validly waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). On a prior appeal from the judgment, we concluded that County Court did not err in failing to make any youthful offender determination because, having been convicted of an armed felony, defendant was eligible to be adjudicated a youthful offender only if the court determined that one or more of the CPL 720.10(3) factors were present, and defendant had offered no evidence of the presence of those factors ( People v. Middlebrooks, 117 A.D.3d 1445, 1446–1447, 985 N.Y.S.2d 365 [4th Dept. 2014] ). The Court of Appeals reversed our order, holding in pertinent part that, "when a defendant has been convicted of an armed felony ... pursuant to CPL 720.10(2)(a)(ii)..., and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3)" ( People v. Middlebrooks, 25 N.Y.3d 516, 527, 35 N.E.3d 464 [2015] ). Upon remittal, County Court determined on the record that defendant was not an eligible youth because neither of the factors set forth in CPL 720.10(3) was present in this case and, therefore, that defendant is not eligible for a youthful offender adjudication.
Although the valid waiver of the right to appeal did not foreclose review of the court's initial failure to consider defendant's eligibility for adjudication as a youthful offender, the waiver forecloses defendant's challenge to the court's discretionary determination that defendant is not an eligible youth inasmuch as the court considered the CPL 720.10(3) factors on the record before continuing the sentence (see People v. Pacherille, 25 N.Y.3d 1021, 1024, 32 N.E.3d 393 [2015] ; People v. Simmons, 159 A.D.3d 1270, 1271, 73 N.Y.S.3d 681 [3d Dept. 2018] ; People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ). The valid waiver of the right to appeal also forecloses review of defendant's request that we exercise our interest of justice jurisdiction to determine that the CPL 720.10(3) factors exist and to adjudicate him a youthful offender (see People v. Torres, 110 A.D.3d 1119, 1119, 972 N.Y.S.2d 738 [3d Dept. 2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ; People v. Wilson, 306 A.D.2d 212, 212, 761 N.Y.S.2d 230 [1st Dept. 2003], lv denied 100 N.Y.2d 646, 769 N.Y.S.2d 213, 801 N.E.2d 434 [2003] ; see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).