Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Joseph WALKER, Jr., Defendant–Appellant. (Appeal No. 1.)
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty under indictment No. 2478/11, of robbery in the first degree (Penal Law § 160.15[3] ) arising out of an incident in November 2011. We reject defendant's contention that his plea must be vacated pursuant to (People v. Fuggazzatto, 62 N.Y.2d 862, 477 N.Y.S.2d 619, 466 N.E.2d 159 ) in light of our vacatur of his guilty plea to an unrelated robbery under superior court information No. 36277 (People v. Walker [appeal No. 2], 148 A.D.3d 1570, 51 N.Y.S.3d 287 ). Defendant "pleaded without any commitment on sentence," and it is well established that such pleas are not subject to vacatur on Fuggazzatto grounds ( People v. Clark, 45 N.Y.2d 432, 440, 408 N.Y.S.2d 463, 380 N.E.2d 290, rearg. denied 45 N.Y.2d 839, 409 N.Y.S.2d 1031, 381 N.E.2d 630 ; see People v. Pichardo, 1 N.Y.3d 126, 129, 769 N.Y.S.2d 791, 802 N.E.2d 141 ; People v. Lowrance, 41 N.Y.2d 303, 304, 392 N.Y.S.2d 417, 360 N.E.2d 1099 ; People v. LeFrois [appeal No. 2], 155 A.D.2d 949, 950, 548 N.Y.S.2d 962, lv. dismissed 76 N.Y.2d 791, 559 N.Y.S.2d 996, 559 N.E.2d 690 ; cf. People v. Williams, 17 N.Y.3d 834, 836, 930 N.Y.S.2d 530, 954 N.E.2d 1155 ). The fact that defendant pleaded guilty to both the indictment and the superior court information as part of a single plea bargain does not change the result. "[T]he pleas are severable, and each should be treated in accordance with its own legal status" (People v. Dinkins, 118 A.D.3d 559, 560, 988 N.Y.S.2d 165 ; see generally People v. Pierre [appeal No. 1], 124 A.D.3d 1332, 1332, 997 N.Y.S.2d 584, lv. denied 25 N.Y.3d 1076, 12 N.Y.S.3d 627, 34 N.E.3d 378 ; People v. Smith, 122 A.D.3d 1420, 1420, 996 N.Y.S.2d 853, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ).
Although defendant correctly notes that his waiver of the right to appeal his conviction does not encompass his challenge to the severity of his sentence (see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ), we nevertheless conclude that the bargained-for sentence is not unduly harsh or severe (see People v. Grucza, 145 A.D.3d 1505, 1506, 45 N.Y.S.3d 722 ). Moreover, given that defendant was over 19 years old at the time of the crime in November 2011, he is categorically ineligible for youthful offender treatment on this particular conviction (see CPL 720.10 [1 ] ). Thus, contrary to defendant's further contention, there is no basis for resentencing pursuant to (People v. Middlebrooks 25 N.Y.3d 516, 14 N.Y.S.3d 296, 35 N.E.3d 464 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.