People v. Capriata — 148 A.D.3d 528

Majority

p. 528

The People of the State of New York, Respondent, v Jose Capriata, Appellant.

[48 NYS3d 595]

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered May 1, 2012, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of six years, unanimously affirmed.

The indictment alleged, and defendant’s plea allocution established, that defendant committed a continuing possessory crime (see Matter of Johnson v Morgenthau, 69 NY2d 148 [1987]) that began when he was 18 but ended when he was 19,

p. 529

and whose elements persisted during that time span. Accordingly, he was not eligible for youthful offender treatment (see People v White, 131 AD3d 891 , 892 [1st Dept 2015], lv denied 26 NY3d 1093 [2015]), and there was no reason for the court to consider it (see People v Middlebrooks, 25 NY3d 516 , 525 [2015]). A youthful offender sentence would have been an illegal sentence; accordingly, we find defendant’s procedural arguments to be unavailing.

Defendant made a valid waiver of his right to appeal (see People v Bryant, 28 NY3d 1094 [2016]), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

Concur — Tom, J.R, Acosta, Kapnick, Kahn and Gesmer, JJ.

Cases cited

Johnson v. Morgenthau 69 NY2d 148 N.Y. 1987-02-19 p. 528
People v. Middlebrooks 25 NY3d 516 N.Y. 2015-06-11 at 525 p. 529
People v. Bryant 28 NY3d 1094 N.Y. 2016-12-20 p. 529