| People v Brooks |
| 2018 NY Slip Op 02482 [160 AD3d 762] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyre Brooks, Appellant. |
Paul Skip Laisure, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel ofcounsel; Robert Ho on the brief), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County(Elizabeth A. Foley, J.), rendered February 25, 2014, convicting him of attempted robbery in thefirst degree, upon his plea of guilty, and imposing sentence, and (2) a resentence of the samecourt imposed April 1, 2015, which vacated the defendant's adjudication as a second violentfelony offender and adjudicated him a first violent felony offender.
Ordered that the judgment and the resentence are affirmed.
The defendant was born in June 1994. On September 20, 2010, the defendant was convictedof the felony of attempted robbery in the second degree, upon his plea of guilty, and sentence wasimposed (see People v Brooks, 120AD3d 1255 [2014]). After the defendant was released from prison for that felony conviction,but while his appeal from that felony conviction was still pending, he was charged withcommitting a series of robberies with a knife in late 2011, and he pleaded guilty to one count ofattempted robbery in the first degree in satisfaction of those charges. He waived his right toappeal, and on February 25, 2014, he received the promised sentence and was adjudicated asecond violent felony offender.
On appeal from his prior felony conviction, in a decision and order of this Court datedSeptember 10, 2014, the matter was remitted to the Supreme Court, Kings County, to determinewhether the defendant should be afforded youthful offender treatment (see id.). Uponremittitur, the defendant's prior felony conviction was vacated and he was afforded youthfuloffender treatment. Therefore, on April 1, 2015, the court resentenced the defendant on hisconviction of attempted robbery in the first degree by adjudicating him a first violent felonyoffender. The defendant appeals from the judgment rendered February 25, 2014, and theresentence imposed April 1, 2015.
The defendant's waiver of his right to appeal was valid (see People v Johnson, 153 AD3d 933 [2017]; People v Lovick, 127 AD3d 1108[2015]). However, whether the Supreme Court was required to consider youthful offendertreatment is an issue which survives a valid waiver of the right to appeal (see People v Pacherille, 25 NY3d1021, 1023-1024 [2015]).
CPL 720.10 (2), which defines an eligible youth, states, in pertinent part, that every person16 years of age or older and less than 19 years old when the crime was committed is an eligibleyouth, unless (1) the defendant was previously convicted and sentenced for a felony, or (2) [*2]was "previously . . . adjudicated a youthful offenderfollowing conviction of a felony." At the time the defendant pleaded guilty to the instant offense,he had been previously convicted and sentenced for the felony of attempted robbery in the seconddegree and, therefore, was not eligible for youthful offender treatment. Thereafter, the priorfelony conviction was vacated, and he was adjudicated a youthful offender for the priorcrime.
The youthful offender adjudication was subsequent to his plea of guilty for the instantoffense. Since the disqualifying circumstance of a youthful offender adjudication followingconviction of a felony occurred after he pleaded guilty to the instant offense, the defendantclaims that he is eligible for youthful offender treatment with respect to the instant offense, andthe resentencing court was required to consider youthful offender treatment for the instantoffense.
When determining whether a defendant is an eligible youth, the defendant's status at the timeof the conviction—in this case at the time of his plea of guilty—is controlling (see People v Henning, 116 AD3d634 [2014]; People v ChristopherD., 83 AD3d 1091 [2011]). If the defendant has not been sentenced for a prior felony atthe time he or she pleads guilty to the new offense, the defendant is still an eligible youth (see People v Ramirez, 115 AD3d992 [2014]; People v Mosley, 88 AD2d 520 [1982]).
Here, the defendant had served his sentence on his prior felony conviction at the time hepleaded guilty to the instant offense. The fact that the prior felony conviction was thereafterchanged to a youthful offender adjudication made no substantive difference, since both the felonyconviction and the youthful offender adjudication were disqualifying. Accordingly, the defendantwas not an eligible youth and was not eligible for youthful offender treatment.
The defendant's valid waiver of his right to appeal precludes review of his claim that thesentence was excessive (see People v Hidalgo, 91 NY2d 733 [1998]). Scheinkman, P.J.,Balkin, Austin and Hinds-Radix, JJ., concur.