PEOPLE v. PARKS (2005)

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered May 10, 2002, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him to 5 to 15 years, to be served concurrently with previously imposed sentences in three other cases, unanimously affirmed.

 Defendant's claim that his prior criminal act, which formed the basis of his previous youthful offender adjudication, could not be used as an overt act on the instant conspiracy charge, essentially attacks the legal sufficiency of the indictment, i.e., that the conspiracy charge is supported by an improper overt act.   Such claim was waived by defendant's plea of guilty and waiver of the right to appeal (see People v. Allen, 86 N.Y.2d 599, 602-603, 635 N.Y.S.2d 139, 658 N.E.2d 1012 [1995];  see also People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998];  People v. Rodriguez, 227 A.D.2d 206, 207, 642 N.Y.S.2d 515 [1996], lv. denied 88 N.Y.2d 993, 649 N.Y.S.2d 400, 672 N.E.2d 626 [1996];  People v. Hwi Jin An, 253 A.D.2d 657, 679 N.Y.S.2d 94 [1998], lv. denied 92 N.Y.2d 949, 681 N.Y.S.2d 480, 704 N.E.2d 233 [1998];  People v. Simms, 269 A.D.2d 788, 703 N.Y.S.2d 777 [2000], lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 9, 731 N.E.2d 626 [2000] ).   While defendant's claim that he should have been be treated as a youthful offender pursuant to CPL 720.20(2) is an attack on the legality of the sentence, and therefore could not be waived (see Allen, 86 N.Y.2d at 602-603, 635 N.Y.S.2d 139, 658 N.E.2d 1012), that statute does not apply to defendant's instant conspiracy conviction.   First, defendant's prior charge ending in his adjudication as a youthful offender and the instant charge of conspiracy were not “set forth in separate counts of an accusatory instrument or set forth in two or more accusatory instruments consolidated for trial purposes” (CPL 720.20[2] ).   Furthermore, defendant is not an “eligible youth” within the statute, because prior to the instant conspiracy conviction, he had been convicted of other felonies, and also adjudicated a youthful offender following conviction of a felony (CPL 720.10[2][b],[c] ).  Indeed, defendant, who admitted in his plea to remaining part of the conspiracy after reaching the age of 19, is not even a “youth” under the statute (CPL 720.10[1] ).