

People v Khapesi (2016 NY Slip Op 03243)





People v Khapesi


2016 NY Slip Op 03243


Decided on April 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 28, 2016

Acosta, J.P., Renwick, Manzanet-Daniels, Kapnick, Gesmer, JJ.


4777/10 945 1342/13 944

[*1]The People of the State of New York, Respondent,
vAdrian Khapesi also known as Derrick Douglas, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya-McGinn of counsel), for respondent.

Judgments, Supreme Court, New York County (Charles H. Solomon, J.), rendered November 26, 2013, as amended February 5, 2014, convicting defendant, upon pleas of guilty, of attempted assault in the first degree and violation of probation, and sentencing him, as a second violent felony offender, to a term of seven years on the attempted assault conviction, and to a concurrent term of one year for the probation violation, unanimously affirmed.
Defendant was not entitled to a youthful offender determination in connection with the violation of probation proceeding. At the time of his 2011 attempted robbery conviction, defendant was not considered for YO treatment, was sentenced to probation without such treatment, and did not appeal. Since "to revoke a penalty of probation does not equate to annulling a sentence" (People v Thompson, __ NY3d __, 2016 NY Slip Op 00997, *4 [2016]), there is no reason to apply the principles of People v Rudolph (21 NY3d 497 [2013]) to defendant's situation. The 2011 judgment was final, and the violation of probation only resulted in a replacement of the original conditional penalty with a different punishment.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 28, 2016
CLERK


