SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
99
KA 10-01779
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ERROL FOWLER-GRAHAM, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered August 6, 2010. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of two counts of robbery in the first degree
(Penal Law § 160.15 [3]). Defendant waived his present contention
that Supreme Court erred in failing to set forth on the record at
sentencing the reasons for its statement that “[y]outhful offender
status is denied” inasmuch as defendant did not contend at the time of
sentencing that he was entitled to a youthful offender adjudication
(see People v McGowen, 42 NY2d 905, 906, rearg denied 42 NY2d 1015;
People v Crawford, 85 AD3d 1620, 1620-1621, lv denied 17 NY3d 858; see
generally CPL 720.20 [1]). In addition, defendant failed to preserve
for our review his contention that the court’s failure to adjudicate
him a youthful offender constitutes an abuse of discretion “inasmuch
as he failed to seek that status either at the time of the plea
proceedings or at sentencing” (People v Fowler, 28 AD3d 1183, 1184, lv
denied 7 NY3d 788; see People v Wright, 81 AD3d 1394), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
also decline to grant defendant’s request to exercise our interest of
justice jurisdiction to afford him such status (see People v Jock, 68
AD3d 1816, lv denied 14 NY3d 801). Finally, the sentence is not
unduly harsh or severe.
Entered: February 10, 2012 Frances E. Cafarell
Clerk of the Court