Opinion
2015-09-29
The PEOPLE of the State of New York, Respondent, v. Byron WHITE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 17, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the second degree and assault in the first degree, and sentencing him to concurrent terms of 4 to 12 years and 10 years, respectively, unanimously modified, on the law, to the extent of vacating the sentence on the assault conviction only, and remanding for resentencing on that conviction, and otherwise affirmed.
As the People concede, defendant is entitled to resentencing for an express consideration of a youthful offender determination on his assault conviction ( see People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ).
However, with respect to the conspiracy conviction, defendant is not a “youth” under the statute (CPL 720.10[1] ), because the plea allocution establishes that defendant remained part of the conspiracy after he turned 19 ( see People v. Parks, 23 A.D.3d 153, 154, 802 N.Y.S.2d 693 [1st Dept. 2005] ), and his arguments to the contrary are unavailing. Defendant made a valid waiver of his right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ), which forecloses his claim that his sentence on this conviction is excessive. In any event, regardless of whether defendant made a valid waiver of his right to appeal, we perceive no basis for reducing the sentence on the conspiracy conviction. MAZZARELLI, J.P., SWEENY, RENWICK, MANZANET–DANIELS, JJ., concur.