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

831
KA 11-01483
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMAL H., DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), entered May 25, 2011. The judgment
convicted defendant, upon his plea of guilty, of burglary in the
second degree.

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

     Memorandum: In appeal No. 2, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the second
degree (Penal Law § 140.25 [2]). Defendant does not raise any
contentions with respect to the adjudication in appeal No. 1, and we
therefore deem abandoned any such contentions (see generally People v
Bridgeland, 19 AD3d 1122, 1123). It is undisputed that Supreme Court
originally had agreed that it would adjudicate defendant a youthful
offender in connection with his plea of guilty on the indictment in
appeal No. 2 as well as in connection with his plea of guilty on the
indictment in appeal No. 1 but that, at sentencing, the court
determined that it was not able to comply with its original sentence
promise with respect to the indictment in appeal No. 2. The court
vacated defendant’s pleas in connection with both indictments.
Defendant thereafter again pleaded guilty to, inter alia, the
indictment in appeal No. 2.

     “As a matter of law and strong public policy, a sentencing
promise made in conjunction with a plea is conditioned upon ‘its being
lawful and appropriate in light of the subsequent presentence report
or information obtained from other reliable sources’ ” (People v
Hicks, 98 NY2d 185, 188; see People v Herber, 24 AD3d 1317, 1318, lv
denied 6 NY3d 814). Contrary to defendant’s contention, “the court’s
reliance on the presentence report for its determination that
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                                                        KA 11-01483

defendant would not be afforded youthful offender status ‘constitutes
an adequate explanation for the denial of defendant’s request for such
status’ ” (People v Wargula, 86 AD3d 929, 930, lv denied 17 NY3d 862).
The presentence report “included mitigating and aggravating factors,
[and therefore] adequately explained the court’s reasons for denying
youthful offender status on the instant indictment” (People v DePugh,
16 AD3d 1083, 1084). To the extent that defendant contends that the
court was aware of all of the information contained in the presentence
report at the time it agreed to adjudicate defendant a youthful
offender, we note that not all of the aggravating factors that are
contained in the presentence report otherwise appear on the record.
Thus, we are unable to review defendant’s contention that the court
abused its discretion in determining that it could not comply with the
original plea agreement because it was apprised of those factors
during a pre-plea conference.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
