Opinion
144 KA 17–00061
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Jermaine M. GOTHAM, Defendant–Appellant.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty to a superior court information (SCI) of, inter alia, robbery in the second degree ( Penal Law § 160.10[1] ) and attempted burglary in the second degree (§§ 110.00, 140.25[2] ).
Defendant contends that the SCI was deficient because the factual allegations of count two do not support the crime set forth in that count, i.e., robbery in the second degree as a violation of Penal Law § 160.10(2). Contrary to the assertion of the People, defendant's contention survives his guilty plea (see People v. Tun Aung, 117 A.D.3d 1492, 1493, 984 N.Y.S.2d 733 [4th Dept. 2014] ). We conclude, however, that the contention is without merit. The record establishes that the discrepancy between the factual allegations of count two and the crime charged therein is the result "solely [of] a typographical error" inasmuch as the facts alleged in count two of the SCI make it clear that the crime intended to be charged is robbery in the second degree as a violation of Penal Law § 160.10(1), and we conclude that the typographical error does not render the SCI jurisdictionally defective ( People v. Jackson, 128 A.D.3d 1279, 1279–1280, 9 N.Y.S.3d 739 [3d Dept. 2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). We note that the certificate of conviction contains the same typographical error. It incorrectly recites that defendant was convicted of robbery in the second degree under Penal Law § 160.10(2), and it must therefore be amended to reflect that he was convicted of that crime under Penal Law § 160.10(1) (see People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353 [4th Dept. 2006] ).
Defendant further contends that count six fails to set forth his conduct that constituted the crime of attempted burglary in the second degree in violation of Penal Law §§ 110.00 and 140.25(2). That contention, however, "is related to the sufficiency of the factual allegations, as opposed to a failure to allege the material elements of the crime," and thus it does not survive defendant's guilty plea ( People v. Price, 234 A.D.2d 978, 978–979, 652 N.Y.S.2d 453 [4th Dept. 1996], lv denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063 [1997] ).
We conclude that County Court did not abuse its discretion in denying defendant's request for youthful offender status (see People v. Johnson, 109 A.D.3d 1191, 1191–1192, 971 N.Y.S.2d 723 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see generally People v. Mills, 151 A.D.3d 1744, 1745, 57 N.Y.S.3d 298 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.