        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

332
KA 12-00342
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM MIDDLEBROOKS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered January 30, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree
(three counts) and robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, three counts of robbery in the first
degree (Penal Law § 160.15 [4]), defendant contends that County Court
erred in failing to make a youthful offender determination. We reject
that contention. The Court of Appeals recently held that, “where a
defendant is eligible to be treated as a youthful offender, the
sentencing court ‘must’ determine whether he or she is to be so
treated[,] . . . even where defendant has failed to ask to be treated
as a youthful offender, or has purported to waive his or her right to
make such a request” (People v Rudolph, 21 NY3d 497, 499, quoting CPL
720.20 [1] [emphasis added]). According to the Court of Appeals, “the
legislature’s use of the word ‘must’ in this context . . . reflect[s]
a policy choice that there be a youthful offender determination in
every case where the defendant is eligible” (id. at 501 [emphasis
added]). Pursuant to the statute, “a defendant is ‘eligible’ for
youthful offender status if he or she was younger than 19 at the time
of the crime, unless the crime is one of several serious felonies
excluded by the statute, or unless defendant has a prior felony
conviction or has been adjudicated a youthful offender in a previous
case” (id. at 500 [emphasis added]; see CPL 720.10 [1], [2]).

     In this case, defendant was convicted of robbery in the first
degree, which is an “armed felony” for purposes of the youthful
offender statute (CPL 720.10 [2] [a]; see CPL 1.20 [41]; Penal Law §§
                                 -2-                           332
                                                         KA 12-00342

70.02, 160.15 [4]). Defendant therefore is “eligible to be
adjudicated a youthful offender only if the court determined that
there were ‘mitigating circumstances that bear directly upon the
manner in which the crime[s were] committed; or . . . [, inasmuch as]
defendant was not the sole participant in the crime[s], [that]
defendant’s participation was relatively minor’ ” (People v Lugo, 87
AD3d 1403, 1405, lv denied 18 NY3d 860, quoting CPL 720.10 [3]).
Here, defendant offered no evidence of mitigating circumstances
relating to the manner in which the robberies were committed, nor did
he specify any facts indicating that his participation in those crimes
was “relatively minor” (CPL 720.10 [3]). Defendant did not dispute
the circumstances of the crimes as alleged and, given that defendant’s
DNA was found on the duct tape used to restrain at least nine victims
and the handcuffs used to restrain another victim, there was no basis
for the court itself to conclude that defendant was a minor
participant in the crimes. Because defendant was not eligible for
youthful offender treatment, the court did not err in failing to make
a youthful offender determination (see People v Frontuto, 114 AD3d
1271, 1271-1272; see also People v Watts, 91 AD3d 678, 679, lv denied
18 NY3d 963; Lugo, 87 AD3d at 1405; cf. Rudolph, 21 NY3d at 499).

     Finally, contrary to defendant’s contention, the record
establishes that he knowingly, voluntarily and intelligently waived
the right to appeal (see generally People v Lopez, 6 NY3d 248, 256),
and that valid waiver forecloses any challenge by defendant to the
severity of the bargained-for sentence (see id. at 255; see also
People v Vincent, 114 AD3d 1171, ___; People v Williams, 49 AD3d 1280,
1280; see generally People v Lococo, 92 NY2d 825, 827).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
