| People v Brown |
| 2021 NY Slip Op 01442 [192 AD3d 1260] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1](March 11, 2021)
| The People of the State of New York,Respondent, v Derrick Brown, Also Known as Derek Brown,Appellant. |
Derrick Brown, Hillsdale, appellant pro se.
Meagan K. Galligan, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.
Lynch, J.P. Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered June 13, 2011, convicting defendant upon his plea of guilty of the crimes ofburglary in the second degree, grand larceny in the fourth degree, criminal possession of stolenproperty in the fourth degree, conspiracy in the fourth degree, attempted petit larceny andunlawful possession of marihuana and, (2) by permission, from an order of said court, enteredMay 25, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgmentof conviction, without a hearing.
Defendant, then 18 years old, broke into a home with an accomplice looking for items tosteal. Unbeknownst to the intruders, the homeowner was upstairs and called the police, whoarrived and arrested defendant at the scene. Defendant was charged in an indictment withburglary in the second degree, grand larceny in the fourth degree, criminal possession of stolenproperty in the fourth degree, conspiracy in the fourth degree, attempted petit larceny andunlawful possession of marihuana. In 2011, defendant entered a plea to the indictment with theunderstanding that the People would recommend a prison term of no more than 12 years,followed by five years of postrelease supervision; County Court made no sentencing commitmentbut stated that the sentence would not exceed 15 years.
At sentencing, the People recommended that defendant be sentenced to a prison term of 12years, followed by five years of postrelease supervision, on the burglary conviction and that theremaining lesser-imposed sentences run concurrently, with the exception of a consecutive prisonsentence of 1
In 2019, defendant made a motion to this Court for a writ of error coram nobis seeking tovacate the judgment of conviction on the ground that he was denied the effective assistance ofappellate counsel. Specifically, defendant contended that appellate counsel raised only oneargument, that defendant's sentence was harsh and excessive, and failed to argue other issuespertaining to the voluntariness of his plea, ineffective assistance of counsel and alleged judicialconflict of interest. Finding merit to defendant's claim, this Court granted defendant's motion,vacated its prior order affirming the judgment of conviction and reinstated the appeal (172 AD3d1523 [2019]).
To the extent that defendant challenges the denial of his request for youthful offender [*2]status, "the decision to grant or deny youthful offender status restswithin the sound exercise of the sentencing court's discretion and, absent a clear abuse of thatdiscretion, its decision will not be disturbed" (People v Turner, 174 AD3d 1123, 1126 [2019] [internal quotationmarks and citation omitted], lv denied 34 NY3d 985 [2019]; see People v Carl, 188 AD3d1304, 1307 [2020]). Given the serious nature of the burglary and defendant's othercontemporaneous larcenous conduct and criminal history, we are unpersuaded that County Courtabused its discretion in denying youthful offender status (see People v Turner, 174 AD3dat 1126; People v Green, 128 AD3d1282, 1283 [2015]; People vLacelle, 19 AD3d 869, 870 [2005]).
Turning to the sentence imposed for the burglary conviction, we are unpersuaded that it isharsh or excessive, notwithstanding defendant's laudable postconviction conduct andachievements. Despite making some inappropriate comments, the record reflects that CountyCourt considered appropriate factors in imposing the 12-year prison term, which was consistentwith the plea agreement and less than the statutory maximum sentence permissible (see People v Smith, 140 AD3d1396, 1398 [2016], lv denied 28 NY3d 936 [2016]; People v Murphy, 56 AD3d 951,951 [2008], lv denied 12 NY3d 786 [2009]; see also Penal Law§ 70.02 [3] [b]). We do find, however, that imposing a consecutive sentence inconnection with the conviction of conspiracy in the fourth degree renders the aggregate sentenceharsh and excessive. The plea agreement, as set forth by the People and as explained to defendantby County Court, failed to mention the possibility that the sentences imposed could runconsecutively. Moreover, by the People recommending, and the court imposing, a consecutiveprison term in connection with the conspiracy conviction, which resulted in an aggregate prisonsentence of 13
Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that all sentencesimposed upon defendant run concurrently to one another, and, as so modified, affirmed. Orderedthat the order is affirmed.
Footnote *:As defendant has not raised anyspecific arguments related to his appeal from the denial of his CPL 440.10 motion, we deem theappeal to be abandoned (see People vEllis, 182 AD3d 791, 792 n 2 [2020], lv denied 35 NY3d 1026 [2020]).