| People v Watts |
| 2012 NY Slip Op 00233 [91 AD3d 678] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Keenan J. Watts, Jr., Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the County Court, Dutchess County (Hayes,J.), rendered October 27, 2009, convicting him of robbery in the second degree, upon his plea ofguilty, and imposing sentence, and (2) a judgment of the same court, also rendered October 27,2009, convicting him of burglary in the first degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgments are affirmed.
The defendant's contention that his plea allocution was factually insufficient to establish thecrime of burglary in the first degree is unpreserved for appellate review because the defendantfailed to move to withdraw his plea on that basis (see People v Lopez, 71 NY2d 662, 665[1988]; People v Young, 88 AD3d918 [2011]; People v Infante,71 AD3d 1047, 1048 [2010]). Moreover, the "rare case" exception to the preservationrequirement does not apply here because the defendant's plea allocution did not cast significantdoubt on his guilt, negate an essential element of the crime, or call into question the voluntarinessof his plea (see People v Lopez, 71 NY2d at 666; People v Young, 88 AD3d 918 [2011]; People v Infante, 71AD3d at 1048). In any event, the defendant's claim that the plea allocution was factuallyinsufficient is without merit.
The defendant contends that the County Court erred in failing to make a determination on therecord as to whether he should receive youthful offender treatment. However, since the defendantdid not assert that he should be adjudicated a youthful offender at the time of sentencing, hiscontention was waived (see People v McGowen, 42 NY2d 905, 906 [1977]; People vPagano, 253 AD2d 500 [1998]; People v Cunningham, 238 AD2d 350 [1997]).Additionally, the defendant did not receive ineffective assistance of counsel based upon counsel'sfailure to request a youthful offender adjudication. "[C]ounsel cannot be held ineffective for'fail[ing] to make [an application] or argument that has little or no chance of success' " (People v Padgett, 87 AD3d 1166,1167 [2011], quoting People vCaban, 5 NY3d 143, 152 [2005]; see People v Kurth, 82 AD3d 905, 906 [2011]). Here, the defendantwas not eligible for a youthful offender adjudication as to his robbery conviction because therewere no mitigating circumstances "bear[ing] directly upon the manner in which the crime was[*2]committed," and his role in the crime was not minor (CPL720.10 [3]; see 720.10 [2] [a]; 1.20 [41]; People v Henry, 76 AD3d 1031 [2010]; People v Joseph, 50 AD3d 1159,1160 [2008]). Further, considering the seriousness of the burglary offense, the favorable plea thedefendant received, and the fact that he had committed a robbery during the previous month, theinterests of justice would not be served by the defendant receiving a youthful offenderadjudication as to the burglary conviction (see CPL 720.20 [1] [a]; People v Lopez, 82 AD3d 906,907 [2011]; People v Thompson, 16AD3d 603, 604 [2005]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.