THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty under indictment No. 2478/11, of robbery in the first degree (Penal Law § 160.15[3] ) arising out of an incident in November 2011.  We reject defendant's contention that his plea must be vacated pursuant to People v. Fuggazzatto (62 N.Y.2d 862) in light of our vacatur of his guilty plea to an unrelated robbery under superior court information No. 36277 (People v. Walker [appeal No. 2], _ AD3d _).  Defendant “pleaded without any commitment on sentence,” and it is well established that such pleas are not subject to vacatur on Fuggazzatto grounds (People v. Clark, 45 N.Y.2d 432, 440, rearg. denied 45 N.Y.2d 839;  see People v. Pichardo, 1 NY3d 126, 129;  People v. Lowrance, 41 N.Y.2d 303, 304;  People v. LeFrois [appeal No. 2], 155 A.D.2d 949, 950, lv dismissed 76 N.Y.2d 791;  cf.  People v. Williams, 17 NY3d 834, 836).  The fact that defendant pleaded guilty to both the indictment and the superior court information as part of a single plea bargain does not change the result.  “[T]he pleas are severable, and each should be treated in accordance with its own legal status” (People v. Dinkins, 118 AD3d 559, 560;  see generally People v. Pierre [appeal No. 1], 124 AD3d 1332, 1332, lv denied 25 NY3d 1076;  People v. Smith, 122 AD3d 1420, 1420, lv denied 25 NY3d 1172).

Although defendant correctly notes that his waiver of the right to appeal his conviction does not encompass his challenge to the severity of his sentence (see People v. Maracle, 19 NY3d 925, 928), we nevertheless conclude that the bargained-for sentence is not unduly harsh or severe (see People v. Grucza, 145 AD3d 1505, 1506).  Moreover, given that defendant was over 19 years old at the time of the crime in November 2011, he is categorically ineligible for youthful offender treatment on this particular conviction (see CPL 720.10 [1] ).  Thus, contrary to defendant's further contention, there is no basis for resentencing pursuant to People v. Middlebrooks (25 NY3d 516).

Frances E. Cafarell

Clerk of the Court