Opinion
1129 KA 16–00852
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Nicholas A. NICORVO, Defendant–Appellant. (Appeal No. 2.)
MARK A. FOTI, ROCHESTER, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NICOLE L. KYLE OF COUNSEL), FOR RESPONDENT.
MARK A. FOTI, ROCHESTER, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NICOLE L. KYLE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him as a juvenile offender upon his plea of guilty of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and, in appeal No. 2, he appeals from a resentence placing him in the custody of the New York State Office of Children and Family Services. We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v. Primm , 57 A.D.3d 1525, 1525, 870 N.Y.S.2d 188 [4th Dept. 2008], lv denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ).
We reject defendant's contention that County Court erred in refusing to suppress his statements to law enforcement that were made prior to Miranda warnings being given. The evidence at the suppression hearing established that the statements were made in response to the officers' questioning of him pursuant to the emergency doctrine (see People v. Harris , 129 A.D.3d 1522, 1522–1523, 11 N.Y.S.3d 359 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; see generally People v. Doll , 21 N.Y.3d 665, 670–671, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg. denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014] ). Contrary to defendant's further contention, the court did not abuse its discretion in declining to grant youthful offender status (see People v. Abdul–Jaleel , 142 A.D.3d 1296, 1298–1299, 38 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see id. at 1299, 38 N.Y.S.3d 645 ).