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

157
KA 15-01101
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWIGHT MITCHELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE 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 Erie County Court (Thomas P.
Franczyk, J.), rendered September 20, 2012. The judgment convicted
defendant, upon his plea of guilty, of 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 a plea
of guilty of robbery in the second degree (Penal Law § 160.10 [1]),
defendant contends that County Court failed to abide by the procedures
set forth in People v Middlebrooks (25 NY3d 516) and CPL 720.10 in
determining whether to grant him youthful offender status. We reject
that contention. First, Middlebrooks addresses procedures for when a
defendant “has been convicted of an armed felony or an enumerated sex
offense” (25 NY3d at 527). It is undisputed that robbery in the
second degree under Penal Law § 160.10 (1) is neither an armed felony
(see CPL 1.20 [41]; People v Thomas, 202 AD2d 525, 526, lv denied 83
NY2d 915; People v Walker, 189 AD2d 564, 564, lv denied 81 NY2d 978)
nor an enumerated sex offense. Second, inasmuch as defendant was
otherwise an “eligible youth” (CPL 720.10 [2] [a] - [c]), the court
fulfilled its statutory duty by making an on-the-record determination
denying defendant’s request for youthful offender treatment (see CPL
720.20 [1]; People v Rudolph, 21 NY3d 497, 499).

     The People correctly concede that the waiver of the right to
appeal is not valid “inasmuch as [defendant] pleaded guilty to the
sole count in the superior court information without receiving a
sentencing commitment or any other consideration” (People v Gramza,
140 AD3d 1643, 1644, lv denied 28 NY3d 930; see People v Collins, 129
AD3d 1676, 1676, lv denied 26 NY3d 1038). The waiver thus does not
preclude defendant’s challenges to the severity of the sentence. We
                                 -2-                           157
                                                         KA 15-01101

nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
