Opinion
11-16-2016
The PEOPLE, etc., respondent, v. Stephan CLARKE, appellant.
Mark Diamond, New York, NY, for appellant. James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Jennifer Spencer of counsel), for respondent.
Mark Diamond, New York, NY, for appellant.James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Jennifer Spencer of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit, J.), rendered March 3, 2015, convicting him of burglary in the second degree (two counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Initially, the defendant's waiver of his right to appeal was invalid (see People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 ) and, in any event, does not bar his contention that the County Court failed to consider youthful offender treatment (see People v. Dhillon, 143 A.D.3d 734, 39 N.Y.S.3d 181, [2d Dept.2016] ; People v. Newman, 137 A.D.3d 1306, 1307, 28 N.Y.S.3d 395 ).
CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” (People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; see People v. Youmans, 140 A.D.3d 1097, 1097, 33 N.Y.S.3d 744 ). Here, however, the record reflects that the defendant previously had been adjudicated a youthful offender following two separate felony convictions, and had been convicted and sentenced for another felony. Accordingly, the defendant was not eligible to be considered for youthful offender treatment (see CPL 720.10[2][b], [c] ; People v. Raleigh, 121 A.D.3d 1412, 1413, 996 N.Y.S.2d 739 ).
The defendant's remaining contentions are without merit.
ENG, P.J., AUSTIN, ROMAN and COHEN, JJ., concur.