People v. Whidbee

• Decision Date: 08 August 2018
• Docket Number: 2015-11503,Ind. No. 5302/15
• Citation: 78 N.Y.S.3d 674 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Tyrone WHIDBEE, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 623

78 N.Y.S.3d 674 (Mem)

The PEOPLE, etc., respondent,

v.Tyrone WHIDBEE, appellant.

2015-11503

Ind. No. 5302/15

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

Submitted—June 13, 2018

August 8, 2018

The Legal Aid Society, New York, N.Y. (Ellen Dille of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.

MARK C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS–RADIX VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed October 19, 2015, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The Court of Appeals in People v. Rudolph , 21 N.Y.3d 497, 502, 974 N.Y.S.2d 885, 997 N.E.2d 457 stated that, although the right to consideration of youthful offender treatment is not waivable, the "prosecutor may bargain for the right to withdraw consent to the plea agreement if youthful offender treatment is granted." In this case, the prosecutor bargained for the right to withdraw consent to the plea agreement if youthful offender treatment were granted, the Supreme Court accepted that bargain, and the court nevertheless considered youthful offender treatment and denied it. Consequently, no error of law was committed.

The defendant's purported waiver of his right to appeal, which was based upon a brief and incomplete colloquy which did not explain the nature of the right to appeal, was invalid (see People v. Thompson, 155 A.D.3d 897, 63 N.Y.S.3d 727 ; People v. Rennick, 123 A.D.3d 1146, 997 N.Y.S.2d 637 ; People v. Coleman, 116 A.D.3d 708, 982 N.Y.S.2d 784 ). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). However, contrary to the defendant's contention, the denial of youthful offender treatment was not an improvident exercise of discretion, and the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.