PEOPLE v. HOPPER (2007)

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered May 25, 2005, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

In 2004, defendant and two codefendants were jointly indicted on two counts of first degree robbery for their participation in a violent robbery of a hotel in the Town of Lake George, Warren County. During the robbery, the front-desk clerk was threatened with a knife and tied up with a rope by the codefendants, who stole money from the hotel safe, a computer and other items, while defendant cut the phone lines and stood over the victim, acting as a lookout.   Pursuant to a negotiated, counseled agreement, defendant pleaded guilty to robbery in the first degree and waived his right to appeal upon County Court's promise to sentence him to a determinate period of imprisonment of between five and eight years with up to five years of postrelease supervision.   Upon his conviction, defendant was sentenced to six years in prison with three years of postrelease supervision, ordered to pay restitution, and an order of protection was issued in favor of the victim.

 Defendant contends that his appeal waiver and guilty plea were not knowing, voluntary and intelligent, primarily because County Court did not apprise him on the record during his plea of his right to pursue youthful offender adjudication and sentencing (see CPL art. 720;  Penal Law §§ 60.02).   While defendant's involuntariness claims survive his appeal waiver, they are unpreserved due to his failure to move to withdraw his plea or to vacate the judgment of conviction (see People v. Smith, 34 A.D.3d 1127, 1127, 824 N.Y.S.2d 504 [2006];  People v. Sharlow, 12 A.D.3d 724, 725, 784 N.Y.S.2d 203 [2004], lv. denied 4 N.Y.3d 748, 790 N.Y.S.2d 660, 824 N.E.2d 61 [2004] ).   Upon our review, we find that the record sufficiently establishes that the court repeatedly outlined-and that defendant understood-the distinct terms and consequences of the plea, including the possible sentencing parameters and defendant's separate waiver of the right to appeal which the court explained in understandable terms and which defendant indicated he had discussed with his attorney (see People v. Lopez, 6 N.Y.3d 248, 255-56, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Crowley, 34 A.D.3d 866, 866-867, 823 N.Y.S.2d 561 [2006], lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006];  People v. Nason, 31 A.D.3d 818, 819, 819 N.Y.S.2d 790 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006];  cf. People v. Guthinger, 36 A.D.3d 1075, 826 N.Y.S.2d 857 [2007];  People v. Phillips, 28 A.D.3d 939, 939, 813 N.Y.S.2d 258 [2006], lv. denied 7 N.Y.3d 761, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] ).

 Further, the preplea investigation report determined that defendant was eligible for youthful offender treatment but recommended against it;  the record does not contain any further discussion of the matter or a request for youthful offender treatment, and the plea agreement made no mention of it, clearly reflecting that it was not part of the deal.   Defendant, who was about five weeks short of his nineteenth birthday at the time of this crime, waived his right to be considered for youthful offender treatment by failing to request it at sentencing, although the preplea investigation report-which was also used at sentencing upon consent-had indicated his eligibility (see People v. McGowen, 42 N.Y.2d 905, 906, 397 N.Y.S.2d 993, 366 N.E.2d 1347 [1977];  People v. Rogers, 5 A.D.3d 871, 873, 774 N.Y.S.2d 93 [2004], lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004];  People v. Howard, 1 A.D.3d 718, 719, 766 N.Y.S.2d 641 [2003];  People v. Richardson, 295 A.D.2d 704, 704, 743 N.Y.S.2d 324 [2002], lvs. denied 98 N.Y.2d 709, 713, 749 N.Y.S.2d 6, 10, 778 N.E.2d 557, 561 [2002];  People v. Gregory, 290 A.D.2d 810, 812, 736 N.Y.S.2d 512 [2002], lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 465, 774 N.E.2d 230 [2002] ).   Contrary to defendant's claims, County Court was not obligated to raise the subject of youthful offender treatment at sentencing, after defendant had entered into the negotiated plea agreement which he knew did not include youthful offender treatment (see People v. McGowen, supra at 906, 397 N.Y.S.2d 993, 366 N.E.2d 1347;  People v. Wise, 29 A.D.3d 1216, 1217, 815 N.Y.S.2d 328 [2006], lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77 [2006] ).   If the merits were addressed, we would find no abuse of County Court's considerable discretion in not granting youthful offender treatment to defendant, in view of the violent, premeditated nature of this crime and defendant's active involvement (see People v. Smith, supra at 1127, 824 N.Y.S.2d 504;  People v. Baker, 6 A.D.3d 751, 773 N.Y.S.2d 621 [2004];  People v. Richardson, supra at 704, 743 N.Y.S.2d 324).

Next, defendant's contention that he received ineffective assistance of counsel due to counsel's failure to pursue youthful offender treatment is unpreserved (see People v. Sharlow, supra at 726, 784 N.Y.S.2d 203).   In any event, when judged in the context of the entire case and in view of the highly advantageous plea bargain and defendant's expressed satisfaction with counsel's representation, we perceive no basis upon which to find that counsel's non-pursuit of youthful offender treatment (which was a doubtful prospect in light of the recommendation of probation) deprived him of meaningful representation (see People v. Gregory, supra at 812, 736 N.Y.S.2d 512;  see also People v. Rogers, supra at 873, 774 N.Y.S.2d 93).

Defendant's challenge to the agreed-upon sentence is foreclosed by his valid waiver of the right to appeal (see People v. Lopez, supra at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Clow, 10 A.D.3d 803, 804, 782 N.Y.S.2d 148 [2004] ).   Despite his protests of being treated unfairly because a codefendant received a shorter jail sentence, the record is devoid of any way to compare the degree of complicity, criminal history or any other factors related to the codefendants which went into County Court's sentencing decisions.   Moreover, in his plea of guilty to this very serious violent felony offense, defendant admitted to playing an active role in a reprehensible crime in which property was stolen and the victim was severely traumatized.   Accordingly, we find nothing harsh and excessive about the sentence, despite his clean record.

Finally, defendant never objected to County Court's issuance of the order of protection, which is not part of the sentence and, thus, his claim-that it was not part of the plea agreement-should have been, but was not, preserved for appeal (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004];  People v. Crowley, 34 A.D.3d 866, 867, 823 N.Y.S.2d 561 [2006], lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006] ).   We decline to exercise our discretion to take corrective action in the interest of justice.

Defendant's remaining claims are precluded by his waiver of appeal and, in any event, lack merit.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., MUGGLIN and ROSE, JJ., concur.