| People v Daniels |
| 2013 NY Slip Op 03352 [106 AD3d 1189] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTarrence Daniels, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered February 8, 2011, which revoked defendant's probation andimposed a sentence of imprisonment.
In May 2010, defendant pleaded guilty to attempted robbery in the second degree. Inaccordance with the plea agreement, County Court sentenced defendant to six months ofincarceration and five years of probation. In August 2010, defendant was charged withviolating numerous terms and conditions of his probation. One month later, defendantwas served with an amended declaration of delinquency. He subsequently admitted theprobation violations, and County Court revoked his probation and sentenced him to fiveyears in prison and three years of postrelease supervision.[FN*]Defendant appeals.[*2]
Defendant's principal challenges on appeal relateto the legality and propriety of his original conviction in May 2010, from which he didnot appeal. Defendant argues, among other things, that he received ineffective assistanceof counsel and that his speedy trial rights were violated. The legality of his priorconviction, however, cannot be raised on appeal from the judgment resentencing himafter his revocation of probation (see CPL 450.30 [3]; People v Pittman, 17 AD3d930, 931 n [2005], lv denied 5 NY3d 767 [2005]; People vStakowski, 276 AD2d 909, 911-912 [2000]; People v Dabbs, 178 AD2d848, 848-849 [1991], lv denied 79 NY2d 946 [1992]). Thus, any issuesregarding defendant's original conviction are not properly before us.
Defendant next argues that County Court relinquished its jurisdiction when it failedto follow the procedural requirements in CPL 410.70 (2). That statute requires that oncethe court files a declaration of delinquency, the defendant "must appear before the courtwithin [10] business days of the court's issuance of the notice to appear and the courtmust advise him [or her] of the contents of the statement" (CPL 410.70 [2]). Here,defendant appeared before County Court two days after the amended declaration ofdelinquency was filed. As it is this amended declaration that was relied upon for therevocation of defendant's probation, the court retained jurisdiction over defendant.
County Court did not err in denying defendant youthful offender treatment. Thegranting of youthful offender treatment to a defendant rests within the trial court'sdiscretion, and its decision will not be disturbed absent a clear abuse of that discretion(see People v Clark, 84AD3d 1647, 1647 [2011]; People v McLucas, 58 AD3d 950, 951 [2009]).County Court did not abuse its discretion in denying defendant youthful offender statusbased on his criminal history, numerous probation violations, admitted drug use andinstances of violent behavior. For those same reasons, the sentence imposed by the courtis not unduly harsh or excessive (see People v Dudley, 100 AD3d 1103, 1104 [2012]; People v Smurphat, 91 AD3d980, 981 [2012], lv denied 18 NY3d 962 [2012]).
Mercure, J.P., Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: While County Courtinitially stated that defendant would receive five years of postrelease supervision, itsubsequently corrected the sentence to include only three years of postreleasesupervision.