

People v Capriata (2017 NY Slip Op 01977)





People v Capriata


2017 NY Slip Op 01977


Decided on March 16, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 16, 2017

Tom, J.P., Acosta, Kapnick, Kahn, Gesmer, JJ.


3425 194/12

[*1]The People of the State of New York, Respondent,
vJose Capriata, Defendant-Appellant.


Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.

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 Johnson v Morgenthau, 69 NY2d 148 [1987]) that began when he was 18 but ended when he was 19, 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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 16, 2017
CLERK


