| People v Turner |
| 2019 NY Slip Op 05718 [174 AD3d 1123] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason R. Turner Jr., Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered October 12, 2016, convicting defendant upon his plea of guilty of the crime of burglaryin the third degree.
Defendant waived indictment and pleaded guilty to burglary in the third degree and waivedhis right to appeal and, in exchange, sentencing was adjourned and he was placed on one year ofinterim probation (see CPL 390.30 [6]). The charge stems from defendant's admittedconduct in entering a home with others to steal marihuana while armed with a BB gun. Under theterms of the initial agreement, County Court promised defendant that if he complied with theterms and conditions of probation, he would be permitted to withdraw his guilty plea and enter aguilty plea to a misdemeanor, receive a sentence of two years of probation and be adjudicated ayouthful offender (see Penal Law § 65.10). Defendant was advised that, ifhe violated the terms of his probation, he faced a maximum potential prison sentence of2
Defendant argues that County Court erred in not adjudicating him a youthful offender on theburglary conviction, and that the sentence imposed thereon was unlawful. Initially, defendantvalidly waived his right to appeal at the time that he pleaded guilty to the burglary charge (see People v Lopez, 6 NY3d 248,256 [2006]). However, that original appeal waiver does not preclude his current challenge to thesentence subsequently imposed on the burglary charge upon his admission to violating probationas part of the new agreement reached to resolve all charges (see People v Montpetit, 170 AD3d 1341, 1342 [2019]; People v Vallance, 137 AD3d1327, 1327-1328 [2016]). Further, the record does not reflect that defendant validly waivedhis right to appeal specifically with respect to the admission to, and disposition of, the probationviolation and ultimate sentencing on the burglary charge (see People v Leflore, 154 AD3d 1164, 1165 [2017], lvdenied 30 NY3d 1106 [2018]; cf.People v Marable, 164 AD3d 1542, 1543 [2018], lv denied 32 NY3d 1126[2018]; People v Burks, 163 AD3d1268, 1268-1269 [2018]).[FN3] Moreover, under both agreements, CountyCourt remained obligated to consider whether youthful offender treatment was appropriate on theburglary charge, as required (see Peoplev Rudolph, 21 NY3d 497, 500-503 [2013]; see also CPL 720.20 [1]; People v Minemier, 29 NY3d 414,418-419 [2017]).
Defendant's primary contention is that County Court, having adjudicated him as a youthfuloffender on the unrelated charge, was also required to adjudicate him a youthful offender on theburglary charge. This is incorrect. Defendant relies upon CPL 720.20 (2), which provides, asrelevant here, that, "[w]here an eligible youth is convicted of two or more crimes. . . set forth in two or more accusatory instruments consolidated for trialpurposes, the court must not find [the youth] a youthful offender with respect to any suchconviction . . . unless it finds him a youthful offender with respect to all suchconvictions" (emphasis added). Contrary to defendant's erroneous supposition, the accusatoryinstruments to which he pleaded guilty, i.e., the superior court informations charging him withburglary and the unrelated crime, were never "consolidated for trial purposes" so as to require ayouthful offender adjudication on both or neither of the convictions (CPL 720.20 [2]; see People v Michael A.C., 128 AD3d1359, 1360 [2015], lv denied 25 NY3d 1168 [2015]; People v Shaquille Mc., 115 AD3d772, 773 [2014]). Although both accusatory instruments were ultimately resolved under ajoint agreement, defendant pleaded guilty to two separate superior court informations, and therecord does not reflect that either party moved to consolidate them, that they were ordered joinedfor trial or, indeed, that they could have been properly joined (see CPL 200.20 [2], [4];see also CPL 200.15). Consequently, "the sentencing court was authorized in itsdiscretion to determine that the defendant was a youthful offender with respect to either or bothconvictions" (People v Shaquille Mc., 115 AD3d at 773), and was not compelled toconfer youthful offender status at sentencing on the burglary conviction.
To the extent that defendant challenges County Court's exercise of discretion in denyingyouthful offender treatment, "the decision to grant or deny youthful offender status rests withinthe sound exercise of the sentencing court's discretion and, absent a clear abuse of that discretion,its decision will not be disturbed" (People v Wilson, 165 AD3d 1323, 1324 [2018] [internal quotationmarks, brackets and citations omitted]). Among the relevant factors taken into consideration are"the gravity of the crime and manner in which it was committed, mitigating circumstances, thedefendant's prior criminal record, prior acts of violence, recommendations in the presentencereports, the defendant's reputation, the level of cooperation with authorities, the defendant'sattitude toward society and respect for the law, and the prospects for rehabilitation and hope for afuture constructive life" (id. [internal quotation marks, brackets and citations omitted]).The record reflects that, in declining to adjudicate defendant a youthful offender on the burglaryconviction, the court reviewed the updated presentence report, which reflected his substantialcriminal history in Virginia dating back to 2014 for which he was on probation or parole at thetime of the burglary. The court also considered defendant's ongoing criminal conduct before andafter the burglary, and defense counsel's arguments that defendant, age 17 at the time of thecrime, had been influenced by his addiction to marihuana and deserved youthful offender statuson both convictions. After examining the foregoing, the court concluded that youthful offendertreatment was not appropriate for the burglary conviction given that it involved a home invasionin which defendant was armed with a weapon, and in light of his prior and subsequent criminalconduct. Under these circumstances, we do not find that the court abused it discretion (seePeople v Wilson, 165 AD3d at 1325; People v Jayden A., 159 AD3d 1284, 1285 [2018], lvdenied 31 NY3d 1118 [2018]). Accordingly, the imposition of a prison sentence of 2 to 6years was lawful (see Penal Law §§ 70.00 [2] [d]; [3] [b]) andconsistent with the parameters of the sentencing promise under the new agreement. Defendant'sremaining claims have been considered and determined to also lack merit.
Lynch, J.P., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The unrelated charge wascommitted prior to defendant being placed on interim probation, whereas the petit larceny wascommitted while defendant was on interim probation. Under the terms of the plea agreement,defendant admitted committing petit larceny and agreed to enter a guilty plea to that charge,which was then pending in another court.
Footnote 2:Defendant's appeal from theyouthful offender adjudication was resolved separately.
Footnote 3:Although County Court elicited awaiver of appeal during the plea allocution to the unrelated charge, the colloquy was not clearthat the waiver also applied to the admission to violating probation and the sentence to beimposed with regard to his prior guilty plea to burglary and the decision whether to grantyouthful offender treatment thereon. The written waiver of appeal executed in court inconnection with the unrelated charge likewise failed to provide that it applied to his admission toviolating probation and the sentence imposed on the burglary charge.