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

439
KA 14-01023
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A.C., DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


MICHAEL A.C., DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 14, 2014. The judgment
convicted defendant, upon his plea of guilty, of assault in the second
degree.

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

     Memorandum: In appeal No. 1, defendant appeals pro se from a
youthful offender adjudication based upon his plea of guilty of
robbery in the third degree (Penal Law § 160.05) and, in appeal No. 2,
he appeals pro se from a judgment convicting him upon his plea of
guilty of assault in the second degree (§ 120.05 [4]). Defendant does
not raise any contentions with respect to the adjudication in appeal
No. 1, and we therefore dismiss the appeal therefrom (see generally
People v Scholz, 125 AD3d 1492, 1492).

     Defendant contends in appeal No. 2 that Supreme Court was
required to determine his eligibility for youthful offender status
with respect to his conviction of assault in the second degree and
erred in failing to do so. “[E]ligibility for youthful offender
status is met at the time of conviction, not at the time of
sentencing” (People v Ramirez, 115 AD3d 992, 993; see People v Cecil
Z., 57 NY2d 899, 901) and, because defendant had not yet been
adjudicated a youthful offender on the robbery charge at the time of
his guilty plea to the assault charge, he was an eligible youth with
respect to both charges (cf. CPL 720.10 [2] [c]). Thus, contrary to
the People’s contention, the court was required to make a youthful
offender determination at sentencing with respect to the assault
conviction (see CPL 720.20 [1]; People v Rudolph, 21 NY3d 497, 501).
Nevertheless, the record belies defendant’s contention that the court
failed to determine whether he was eligible for youthful offender
                                 -2-                           439
                                                         KA 14-01023

status (cf. People v Brownell, 109 AD3d 1172, 1173), and we conclude
that the court did not abuse its discretion in refusing to grant
defendant youthful offender status in appeal No. 2 (see People v
Guppy, 92 AD3d 1243, 1243, lv denied 19 NY3d 961; People v Potter, 13
AD3d 1191, 1191, lv denied 4 NY3d 889). Defendant’s adjudication as a
youthful offender with respect to the robbery conviction in appeal No.
1 did not require that he be adjudicated a youthful offender with
respect to the assault conviction where, as here, the robbery and
assault charges were not set forth in separate counts of a single
accusatory instrument or in two or more accusatory instruments
consolidated for trial purposes (see People v Shaquille Mc., 115 AD3d
772, 773; cf. CPL 720.20 [2]; People v Cory T., 59 AD3d 1063, 1064).

     We have considered defendant’s contention in appeal No. 2 with
respect to the sentence and conclude that it is without merit.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
