PEOPLE v. KWAME

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. KWAME S., Defendant–Appellant.

Decided: May 22, 2012

MAZZARELLI, J.P., ACOSTA, RENWICK, RICHTER, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), for respondent.

Judgment, Supreme Court, New York County (James A. Yates, J. at plea;  Lewis Bart Stone, J. at sentencing), rendered July 1, 2010, convicting defendant of robbery in the first degree, and sentencing him to a term of five years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction, adjudicating defendant a youthful offender, and reducing the sentence to an indeterminate term of 1 1/3 to 4 years of imprisonment, and otherwise affirmed.

Since defendant did not move to withdraw his plea or vacate the judgment, his challenge to the voluntariness of his plea is unpreserved and we decline to review it in the interest of justice.   We conclude that defendant's utterances overall in this case did not engender “significant doubt” on the voluntariness of his plea.   His plea allocution does not qualify for the narrow, “rare case” exception to the preservation doctrine described in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] (see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ).

Defendant also contends that the sentence imposed upon him was excessive.   He also maintains that it was an improvident exercise of discretion for the sentencing court to refuse to accord him youthful offender status.   We agree.

In view of the defendant's young age, the lighter sentences of his codefendants and his complete lack of any juvenile or prior criminal record, we find that the sentence imposed was excessive to the extent indicated.   Moreover, under the circumstances of this case, including the facts that his subsequent arrests were directly related to drug use and the presentence report recommended youthful offender adjudication (see CPL 720.10[3][I] ), we find that “the interest of justice would be served by relieving the [defendant] from the onus of a criminal record” (CPL 720.20[1][a];  see People v. Bruce L., 44 A.D.3d 688, 843 N.Y.S.2d 370 [2007];  People v. Nadja B., 23 A.D.3d 394, 805 N.Y.S.2d 549 [2005] ).