People v. Flagg

174 N.Y.S.3d 920 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Nathaniel FLAGG, Defendant-Appellant.

735

KA 10-01828

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 7, 2022

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND LINDLEY, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed, and the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the second degree ( Penal Law § 160.10 [2] [b] ), defendant contends that his waiver of the right to appeal is invalid, that County Court abused its discretion in declining to adjudicate him a youthful offender, and that the sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal "is invalid and thus does not preclude his challenge to the youthful offender determination" ( People v. Kingdollar , 196 A.D.3d 1146, 1147, 147 N.Y.S.3d 924 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5471117 [2021] ; see People v. Webber , 203 A.D.3d 1660, 1660, 162 N.Y.S.3d 834 [4th Dept. 2022] ; see generally People v. Pacherille , 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ) and assuming further that defendant is an eligible youth under CPL 720.10 (3) (i) (see People v. Garcia , 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994] ; cf. People v. Williams , 202 A.D.3d 1162, 1164, 162 N.Y.S.3d 204 [3d Dept. 2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 448, 185 N.E.3d 969 [2022] ; see generally People v. Middlebrooks , 25 N.Y.3d 516, 524-526, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ), we nevertheless conclude, based upon our review of the appropriate factors (see generally People v. Cruickshank , 105 A.D.2d 325, 334, 484 N.Y.S.2d 328 [3d Dept. 1985], affd sub nom. People v. Dawn Maria C. , 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ), that the court did not abuse its discretion in refusing to adjudicate defendant a youthful offender (see People v. Spencer , 197 A.D.3d 1004, 1005, 153 N.Y.S.3d 361 [4th Dept. 2021], lv denied 37 N.Y.3d 1099, 156 N.Y.S.3d 776, 178 N.E.3d 423 [2021] ). We decline to exercise our interest of justice jurisdiction to afford him that status (see id. ; People v. Lang , 178 A.D.3d 1362, 1363, 112 N.Y.S.3d 632 [4th Dept. 2019], lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 271, 142 N.E.3d 1173 [2020] ).

Finally, we dismiss the appeal to the extent that defendant challenges the severity of his sentence inasmuch as defendant has completed serving the sentence, including any period of postrelease supervision, and thus that part of the appeal is moot (see People v. Finch , 137 A.D.3d 1653, 1655, 28 N.Y.S.3d 190 [4th Dept. 2016] ; People v. Boley , 126 A.D.3d 1389, 1390, 5 N.Y.S.3d 773 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ).