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

158
KA 14-01870
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH WALKER, JR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty under indictment No. 2478/11, of robbery in
the first degree (Penal Law § 160.15 [3]) arising out of an incident
in November 2011. We reject defendant’s contention that his plea must
be vacated pursuant to People v Fuggazzatto (62 NY2d 862) in light of
our vacatur of his guilty plea to an unrelated robbery under superior
court information No. 36277 (People v Walker [appeal No. 2], ___ AD3d
___). Defendant “pleaded without any commitment on sentence,” and it
is well established that such pleas are not subject to vacatur on
Fuggazzatto grounds (People v Clark, 45 NY2d 432, 440, rearg denied 45
NY2d 839; see People v Pichardo, 1 NY3d 126, 129; People v Lowrance,
41 NY2d 303, 304; People v LeFrois [appeal No. 2], 155 AD2d 949, 950,
lv dismissed 76 NY2d 791; cf. People v Williams, 17 NY3d 834, 836).
The fact that defendant pleaded guilty to both the indictment and the
superior court information as part of a single plea bargain does not
change the result. “[T]he pleas are severable, and each should be
treated in accordance with its own legal status” (People v Dinkins,
118 AD3d 559, 560; see generally People v Pierre [appeal No. 1], 124
AD3d 1332, 1332, lv denied 25 NY3d 1076; People v Smith, 122 AD3d
1420, 1420, lv denied 25 NY3d 1172).

     Although defendant correctly notes that his waiver of the right
to appeal his conviction does not encompass his challenge to the
severity of his sentence (see People v Maracle, 19 NY3d 925, 928), we
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                                                         KA 14-01870

nevertheless conclude that the bargained-for sentence is not unduly
harsh or severe (see People v Grucza, 145 AD3d 1505, 1506). Moreover,
given that defendant was over 19 years old at the time of the crime in
November 2011, he is categorically ineligible for youthful offender
treatment on this particular conviction (see CPL 720.10 [1]). Thus,
contrary to defendant’s further contention, there is no basis for
resentencing pursuant to People v Middlebrooks (25 NY3d 516).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
