PEOPLE v. JONES (2019)

MEMORANDUM AND ORDER

The underlying facts in this case are set forth in more detail in this Court's prior decision (146 A.D.3d 1078, 45 N.Y.S.3d 261 [2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ).  Briefly stated, and as is relevant to this appeal, defendant pleaded guilty to assault in the first degree and waived his right to appeal.  In accordance with the plea agreement, defendant was sentenced to a prison term of 15 years to run concurrently with a sentence simultaneously imposed on another conviction.  After the Department of Corrections and Community Supervision advised Supreme Court that a period of postrelease supervision was required in connection with the first degree assault conviction, the court resentenced defendant on that conviction to a prison term of 15 years, followed by 31/212 years of postrelease supervision.  The amended uniform sentence and commitment order, however, erroneously indicated that defendant was subject only to three years of postrelease supervision.

On appeal to this Court from that resentencing, this Court affirmed the judgment, but remitted the matter for correction of the uniform sentence and commitment order.  Upon remittal, Supreme Court directed entry of a second amended uniform sentence and commitment order that properly reflected the imposed 31/212 years of postrelease supervision.  Defendant appeals.

Defendant's sole contention on appeal is that the plea must be vacated because Supreme Court failed to consider whether to grant defendant youthful offender status in connection with his conviction of assault in the first degree.¹  Defendant's contention is not properly before this Court.  On the initial appeal of this matter, this Court affirmed the judgment with respect to defendant's conviction of assault in the first degree and simply remitted the matter for correction of the uniform sentence and commitment order.  This in no way amounted to a resentencing with respect to the conviction of assault in the first degree and did not afford defendant an additional opportunity to appeal (see CPL 450.30, 460.10).  Simply put, appellate review of defendant's challenge to his status as a youthful offender in connection with his conviction of assault in the first degree “was waived by [his] failure to raise [such] issue on his initial appeal” (People v. Leacock, 237 A.D.2d 306, 306, 655 N.Y.S.2d 394 [1997], lv denied 89 N.Y.2d 1096, 660 N.Y.S.2d 390, 682 N.E.2d 991 [1997];  see People v. Harrington, 14 A.D.3d 944, 945, 788 N.Y.S.2d 622 [2005], lv denied 4 N.Y.3d 887, 798 N.Y.S.2d 732, 831 N.E.2d 977 [2005];  People v. Winslow, 36 A.D.2d 997, 998, 321 N.Y.S.2d 722 [1971] ).

ORDERED that the appeal is dismissed.

FOOTNOTES

1.   The other crime to which defendant pleaded guilty was committed after defendant was 19 years old and, therefore, youthful offender consideration was inapplicable.

Egan Jr., J.P.

Mulvey, Devine, Aarons and Rumsey, JJ., concur.