| People v Christopher T. |
| 2008 NY Slip Op 00875 [48 AD3d 1131] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherT., Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment and an adjudication of the Erie County Court (Michael L. D'Amico,J.), rendered August 8, 2006. Defendant was convicted upon his plea of guilty of criminalpossession of stolen property in the fifth degree, reckless endangerment in the first degree, andattempted robbery in the third degree, and defendant was adjudicated a youthful offender uponhis plea of guilty of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the conviction is deemed vacated and replaced by a youthful offender finding, and the sentencesof imprisonment of 1
Memorandum: Defendant appeals from a youthful offender adjudication, based upon his pleaof guilty, of robbery in the first degree (Penal Law § 160.15 [3]) and from a judgmentconvicting him upon his plea of guilty of criminal possession of stolen property in the fifthdegree (§ 165.40), reckless endangerment in the first degree (§ 120.25), andattempted robbery in the third degree (§§ 110.00, 160.05). We reject the contentionof defendant that his waiver of the right to appeal was invalid (see People v Ludlow, 42 AD3d941 [2007]). County Court was not required to " 'engage in any particular litany' whenaccepting [the] defendant's waiver of the right to appeal" (id. at 942, quoting People vCallahan, 80 NY2d 273, 283 [1992]), and the record establishes that defendant's waiver ofthe right to appeal was voluntarily, knowingly, and intelligently entered (see People vHidalgo, 91 NY2d 733, 737 [1998]). The valid waiver by defendant of the right to appealencompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]; Hidalgo,91 NY2d at 737).
We conclude, however, that the sentence imposed pursuant to the plea agreement is illegal. Achallenge to the legality of a sentence is not precluded by a defendant's waiver of the right toappeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Coleman, 23 AD3d 1033 [2005]), and [*2]we reach the issue despite defendant's failure to raise it atsentencing or on appeal inasmuch as "we cannot allow an [illegal] sentence to stand" (People v Davis, 37 AD3d 1179,1180 [2007], lv denied 8 NY3d 983 [2007] [internal quotation marks omitted]). "Wherean eligible youth is convicted of two or more crimes set forth in separate counts of an accusatoryinstrument . . . , the court must not find him a youthful offender with respect to anysuch conviction . . . unless it finds him a youthful offender with respect to all suchconvictions" (CPL 720.20 [2]; see People v Huther, 78 AD2d 1011 [1980]). Here,defendant was convicted of "two or more crimes set forth in separate counts of an accusatoryinstrument" (CPL 720.20 [2]) and, thus, upon adjudicating him a youthful offender with respectto robbery in the first degree under count one of the superior court information, the court wasrequired to adjudicate him a youthful offender with respect to the remaining counts (seeHuther, 78 AD2d at 1011). Moreover, having adjudicated defendant a youthful offender, thecourt "was without authority to impose consecutive sentences in excess of four years" (People v Ralph W.C., 21 AD3d904, 905 [2005]; see Penal Law § 60.02 [2]; People v Simmons, 188AD2d 668, 669 [1992], lv denied 81 NY2d 893 [1993]). We therefore reverse thejudgment and modify the adjudication accordingly. Present—Martoche, J.P., Smith,Centra, Peradotto and Green, JJ.