Opinion
07-03-2024
The PEOPLE of the State of New York, Respondent, v. Nicholas NORRIS, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRAEDAN M. GILLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Brian D. Dennis, J.), rendered August 19, 2022. The judgment convicted defendant upon his plea of guilty of kidnapping in the second degree, criminal possession of a weapon in the second degree (two counts) and attempted robbery in the first degree.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRAEDAN M. GILLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of counts 1 and 4 of the indictment, vacating the plea with respect to those counts and dismissing those counts, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him as a juvenile offender upon his plea of guilty of kidnap- ping in the second degree (Penal Law § 135.20), attempted robbery in the first degree (§§ 110.00, 160.15 [4]), and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Before addressing defendant’s only contention on appeal, which challenges the severity of the sentence, we conclude that, as the People correctly point out, kidnapping in the second degree is not a charge for which defendant, who was 15 years old at the time of the offense, can be held criminally responsible (see § 30.00 [1]; People v. Boye, 175 A.D.2d 924, 924, 573 N.Y.S.2d 759 [2d Dept. 1991]). Similarly, defendant cannot be held criminally responsible for attempted robbery in the first degree (see People v. Faith QQ., 20 A.D.3d 584, 584, 798 N.Y.S.2d 217 [3d Dept. 2005]; People v. Cruz, 225 A.D.2d 790, 791, 640 N.Y.S.2d 159 [2d Dept. 1996]; People v. Lebron, 197 A.D.2d 416, 417, 602 N.Y.S.2d 602 [1st Dept. 1993]).
Because that portion of defendant’s plea with respect to kidnapping in the second degree and attempted robbery in the first degree was not "an integral part of a nonseverable plea bargain" (Boye, 175 A.D.2d at 924, 573 N.Y.S.2d 759), we agree with defendant that only that part of his "plea with respect to those counts of the indictment must be vacated and deemed a nullity" (People v. Tyler L., 111 A.D.3d 1416, 1417, 974 N.Y.S.2d 866 [4th Dept. 2013] [internal quotation marks omitted]; see People v. McKoy, 60 A.D.3d 1374, 1375, 875 N.Y.S.2d 721 [4th Dept. 2009], lv denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 [2009]). We therefore modify the judgment accordingly.
Finally, contrary to defendant’s contention, the sentence on the remaining counts is not unduly harsh or severe.