People v Cory T.

2009 NY Slip Op 00911 [59 AD3d 1063]

February 6, 2009

Appellate Division, Fourth Department

As corrected through Wednesday, April 1, 2009

The People of the State of New York, Respondent, v Cory T.,Appellant.

—[*1]The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.

Appeal from a judgment and an adjudication the Erie County Court (Michael L. D'Amico,J.), rendered August 8, 2006. Defendant was convicted upon his plea of guilty of recklessendangerment in the first degree and attempted robbery in the third degree, and defendant wasadjudicated a youthful offender upon his 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 on counts three and four of the superior court information is deemed vacated andreplaced by a youthful offender finding, and the sentences of imprisonment of 11/3to 4 years imposed on counts three and four of the superior court information are directed to runconcurrently with the sentence imposed on count one of the superior court information, and theadjudication on count one of the superior court information is modified on the law by directingthat the sentence imposed on count one of the superior court information shall run concurrentlywith the sentences imposed on counts three and four of the superior court information and asmodified the adjudication is affirmed, and the matter is remitted to Erie County Court for furtherproceedings on count two of the superior court information in accordance with the followingmemorandum: Defendant appeals from a youthful offender adjudication based upon his plea ofguilty of robbery in the first degree (Penal Law § 160.15 [3]) and from a judgmentconvicting him upon his plea of guilty of reckless endangerment in the first degree (§120.25) and attempted robbery in the third degree (§§ 110.00, 160.05). As thePeople correctly concede, the sentence imposed pursuant to the plea agreement is illegal. "Wherean eligible youth is convicted of two or more crimes set forth in separate counts of an accusatoryinstrument . . . , the court must not find him [or her] a youthful offender withrespect to any such conviction . . . unless it finds him [or her] a youthful offenderwith respect to all such convictions" (CPL 720.20 [2]; People v Christopher T., 48 AD3d 1131, 1132 [2008]; People vHuther, 78 AD2d 1011 [1980]). Here, defendant was convicted of "two or more crimes setforth in separate counts" of the superior court information (SCI) (CPL 720.20 [2]). Thus, uponadjudicating him a youthful offender with respect to robbery in the first degree under count oneof the SCI, County Court was required to adjudicate defendant a youthful offender with respectto the remaining counts. Furthermore, 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 [*2]AD3d 904, 905 [2005];see Penal Law § 60.02 [2]; § 70.00 [2] [e]). We therefore reverse thejudgment and modify the adjudication accordingly.

We note in addition that the court failed to sentence defendant with respect to count two ofthe SCI, charging him with criminal possession of stolen property in the fifth degree (Penal Law§ 165.40), despite the fact that during the plea colloquy defendant admitted each elementof that crime. We further note, however, that both the written waiver of indictment and thepresentence report contain notations striking that count. It is thus unclear whether the courtmistakenly failed to sentence defendant with respect to criminal possession of stolen property inthe fifth degree, or whether that count was dismissed following the entry of defendant's guiltyplea. We therefore remit the matter to County Court for further proceedings on count two of theSCI consistent with our decision. Present—Scudder, P.J., Martoche, Smith, Green andGorski, JJ.