| People v Mitchell |
| 2017 NY Slip Op 00820 [147 AD3d 1361] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DwightMitchell, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of counsel),for respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedSeptember 20, 2012. The judgment convicted defendant, upon his plea of guilty, of robbery inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of robbery inthe second degree (Penal Law § 160.10 [1]), defendant contends that County Courtfailed to abide by the procedures set forth in People v Middlebrooks (25 NY3d 516 [2015]) and CPL 720.10 indetermining whether to grant him youthful offender status. We reject that contention. First,Middlebrooks addresses procedures for when a defendant "has been convicted of anarmed felony or an enumerated sex offense" (25 NY3d at 527). It is undisputed that robbery inthe second degree under Penal Law § 160.10 (1) is neither an armed felony(see CPL 1.20 [41]; People v Thomas, 202 AD2d 525, 526 [1994], lv denied83 NY2d 915 [1994]; People v Walker, 189 AD2d 564, 564 [1993], lv denied81 NY2d 978 [1993]) nor an enumerated sex offense. Second, inasmuch as defendant wasotherwise an "eligible youth" (CPL 720.10 [2] [a]-[c]), the court fulfilled its statutory duty bymaking an on-the-record determination denying defendant's request for youthful offendertreatment (see CPL 720.20 [1]; People v Rudolph, 21 NY3d 497, 499 [2013]).
The People correctly concede that the waiver of the right to appeal is not valid "inasmuch as[defendant] pleaded guilty to the sole count in the superior court information without receiving asentencing commitment or any other consideration" (People v Gramza, 140 AD3d 1643, 1644 [2016], lv denied28 NY3d 930 [2016]; see People vCollins, 129 AD3d 1676, 1676 [2015], lv denied 26 NY3d 1038 [2015]). Thewaiver thus does not preclude defendant's challenges to the severity of the sentence. Wenevertheless conclude that the sentence is not unduly harsh or severe. Present—Smith,J.P., Carni, Lindley, DeJoseph and NeMoyer, JJ.