Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Dwight MITCHELL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ), defendant contends that County Court failed to abide by the procedures set forth in People v. Middlebrooks , 25 N.Y.3d 516, 14 N.Y.S.3d 296, 35 N.E.3d 464 and CPL 720.10 in determining whether to grant him youthful offender status. We reject that contention. First, Middlebrooks addresses procedures for when a defendant "has been convicted of an armed felony or an enumerated sex offense" (25 N.Y.3d at 527, 14 N.Y.S.3d 296, 35 N.E.3d 464 ). It is undisputed that robbery in the second degree under Penal Law § 160.10(1) is neither an armed felony (see CPL 1.20[41] ; People v. Thomas, 202 A.D.2d 525, 526, 609 N.Y.S.2d 621, lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288 ; People v. Walker, 189 A.D.2d 564, 564, 592 N.Y.S.2d 253, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 779, 615 N.E.2d 236 ) nor an enumerated sex offense. Second, inasmuch as defendant was otherwise an "eligible youth" (CPL 720.10[2][a]—[c] ), the court fulfilled its statutory duty by making an on-the-record determination denying defendant's request for youthful offender treatment (see CPL 720.20[1] ; People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 ).
The People correctly concede that the waiver of the right to appeal is not valid "inasmuch as [defendant] pleaded guilty to the sole count in the superior court information without receiving a sentencing commitment or any other consideration" (People v. Gramza, 140 A.D.3d 1643, 1644, 33 N.Y.S.3d 620, lv. denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 ; see People v. Collins, 129 A.D.3d 1676, 1676, 12 N.Y.S.3d 477, lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 ). The waiver thus does not preclude defendant's challenges to the severity of the sentence. We nevertheless conclude that the sentence is not unduly harsh or severe. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.