Opinion
No. 735 KA 10-01828
10-07-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NATHANIEL FLAGG, DEFENDANT-APPELLANT.
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.
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.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered February 24, 2010. The appeal was held by this Court by order entered November 15, 2013, decision was reserved and the matter was remitted to Onondaga County Court for further proceedings (111 A.D.3d 1438 [4th Dept 2013]). The proceedings were held and completed.
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 [4th Dept 2021], lv denied 37 N.Y.3d 915 [2021]; see People v Webber, 203 A.D.3d 1660, 1660 [4th Dept 2022]; see generally People v Pacherille, 25 N.Y.3d 1021, 1024 [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 [1994]; cf. People v Williams, 202 A.D.3d 1162, 1164 [3d Dept 2022], lv denied 38 N.Y.3d 954 [2022]; see generally People v Middlebrooks, 25 N.Y.3d 516, 524-526 [2015]), we nevertheless conclude, based upon our review of the appropriate factors (see generally People v Cruickshank, 105 A.D.2d 325, 334 [3d Dept 1985], affd sub nom. People v Dawn Maria C., 67 N.Y.2d 625 [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 [4th Dept 2021], lv denied 37 N.Y.3d 1099 [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 [4th Dept 2019], lv denied 34 N.Y.3d 1160 [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 [4th Dept 2016]; People v Boley, 126 A.D.3d 1389, 1390 [4th Dept 2015], lv denied 25 N.Y.3d 1159 [2015]).