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

1178
KA 12-00894
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYLER L., DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CHARLES J. GREENBERG OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from an adjudication of the Ontario County Court
(Frederick G. Reed, A.J.), rendered April 25, 2012. Defendant was
adjudicated a youthful offender upon his plea of guilty to robbery in
the second degree (four counts).

     It is hereby ORDERED that the adjudication so appealed from is
unanimously modified on the law by vacating those parts that replaced
the conviction on counts two and seven of the indictment and
dismissing those counts of the indictment, and as modified the
adjudication is affirmed.

     Memorandum: Defendant appeals from a youthful offender
adjudication based upon his plea of guilty of four counts of robbery
in the second degree (Penal Law § 160.10 [1], [2] [a]). Defendant
contends, and the People correctly concede, that County Court was not
authorized to accept the plea of guilty with respect to counts two and
seven of the indictment, charging him with robbery in the second
degree under section 160.10 (1). As a juvenile offender who was 15
years old at the time of the crimes, defendant cannot be held
criminally responsible for robbery in the second degree pursuant to
that subdivision (see CPL 1.20 [42]; Penal Law §§ 10.00 [18]; 30.00
[2]). We conclude that the portion of the plea with respect to those
counts of the indictment is not “an integral part of a nonseverable
plea bargain” (People v Boye, 175 AD2d 924, 924), and that the plea
with respect to those counts of the indictment must be vacated and
“deemed a nullity” (id.; see People v McKoy, 60 AD3d 1374, 1375, lv
denied 12 NY3d 856; People v Stowe, 15 AD3d 597, 598, lv denied 5 NY3d
770). We therefore modify the adjudication accordingly.

     Defendant further contends that the court erred in denying that
part of his omnibus motion seeking removal of this matter to Family
Court pursuant to CPL 210.43 (1). We reject that contention. The
court properly considered the statutory factors (see CPL 210.43 [2]),
                                 -2-                             1178
                                                            KA 12-00894

and it is well settled that removal to Family Court over the District
Attorney’s objections may be ordered only “in the exceptional case”
(Matter of Vega v Bell, 47 NY2d 543, 553). Inasmuch as the prosecutor
objected and defendant failed to establish that this is an exceptional
case, we conclude that the court did not abuse its discretion in
denying defendant’s request (see People v Sanchez, 128 AD2d 816, 816-
817, lv denied 70 NY2d 655; see generally People v Charles M., 286
AD2d 942, 942-943).

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
