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

553
KA 10-01492
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JASON L., DEFENDANT-RESPONDENT.


THOMAS E. MORAN, DISTRICT ATTORNEY, ROCHESTER (VICTOR D. ROWCLIFFE OF
COUNSEL), FOR APPELLANT.

THE PARRINELLO LAW FIRM, LLP, ROCHESTER (BRUCE F. FREEMAN OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an adjudication of the Livingston County Court
(Robert B. Wiggins, J.), rendered April 13, 2010. Defendant was
adjudicated a youthful offender upon his plea of guilty to burglary in
the first degree.

     It is hereby ORDERED that said appeal is unanimously dismissed.

     Memorandum: The People purport to appeal from a sentence
imposing a term of incarceration upon defendant’s plea of guilty of
burglary in the first degree (Penal Law § 140.30 [2]), after County
Court found that defendant was a youthful offender. The People
contend that the court abused its discretion in granting defendant
youthful offender status and that, as a result, the sentence imposed
is invalid as a matter of law. We conclude that the appeal must be
dismissed. “CPL 450.30 (2) authorizes the People to appeal from a
sentence that is invalid as a matter of law” (People v Cosme, 80 NY2d
790, 792), but that statute does not authorize the People to appeal
from a youthful offender finding (see generally People v Calderon, 79
NY2d 61, 63-64, 67). Indeed, upon finding that an individual is a
youthful offender, “the court must direct that the conviction be
deemed vacated and replaced by a youthful offender finding[,] and the
court must sentence the defendant pursuant to section 60.02 of the
penal law” (CPL 720.20 [3] [emphasis added]). “[T]he youthful
offender finding and the youthful offender sentence imposed thereupon
constitute a ‘youthful offender adjudication’ ” (Calderon, 79 NY2d at
65). Here, the People do not allege that the sentence of
incarceration of 1a to 4 years is illegal. Rather, “in the guise of
challenging the sentence imposed, the People are in essence attacking
the validity of the defendant’s underlying [youthful offender
finding,] . . . [which CPL 450.30 (2)] does not permit them to do”
                            -2-                  553
                                           KA 10-01492

(Cosme, 80 NY2d at 792).




Entered:   April 29, 2011         Patricia L. Morgan
                                  Clerk of the Court
