People v. Capriata

Court: Appellate Division of the Supreme Court of the State of New York
Date filed: 2017-03-16
Citations: 2017 NY Slip Op 1977, 148 A.D.3d 528, 48 N.Y.S.3d 595
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Combined Opinion

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered May 1, 2012, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of six years, unanimously affirmed.

The indictment alleged, and defendant’s plea allocution established, that defendant committed a continuing possessory crime (see Matter of Johnson v Morgenthau, 69 NY2d 148 [1987]) that began when he was 18 but ended when he was 19, *529 and whose elements persisted during that time span. Accordingly, he was not eligible for youthful offender treatment (see People v White, 131 AD3d 891, 892 [1st Dept 2015], lv denied 26 NY3d 1093 [2015]), and there was no reason for the court to consider it (see People v Middlebrooks, 25 NY3d 516, 525 [2015]). A youthful offender sentence would have been an illegal sentence; accordingly, we find defendant’s procedural arguments to be unavailing.

Defendant made a valid waiver of his right to appeal (see People v Bryant, 28 NY3d 1094 [2016]), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

Concur — Tom, J.R, Acosta, Kapnick, Kahn and Gesmer, JJ.