PEOPLE v. ROY

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

The PEOPLE of the State of New York, Respondent, v. Daniel ROY, Appellant.

Decided: December 24, 1997

Before CARDONA, P.J., and MIKOLL, MERCURE, SPAIN and CARPINELLO, JJ. Paul J. Connolly, Albany, for appellant. Robert M. Carney, District Attorney (Alfred D. Chapleau, of counsel), Schenectady, for respondent.

Appeal from a judgment of the County Court of Schenectady County (Scarano Jr., J.), rendered February 14, 1995, convicting defendant upon his plea of guilty of the crime of manslaughter in the second degree.

 Defendant pleaded guilty to the crime of manslaughter in the second degree and, after he was denied adjudication as a youthful offender, was sentenced in accordance with a negotiated plea agreement to a prison term of 5 to 15 years.   Contrary to defendant's contention on appeal, we do not find that County Court improvidently exercised its discretion by denying him youthful offender status in view of the court's consideration of the negative recommendation of the Probation Department and the serious nature of the crime to which defendant pleaded guilty (i.e., while under the influence of cocaine, defendant recklessly caused the death of an infant by throwing him up into the air) (see, People v. Bonilla, 237 A.D.2d 672, 654 N.Y.S.2d 56;  People v. Ortega, 114 A.D.2d 912, 495 N.Y.S.2d 82, lv. denied 67 N.Y.2d 887, 501 N.Y.S.2d 1039, 492 N.E.2d 1246;  see also, CPL 720.20[1] ).  Moreover, inasmuch as defendant received the benefit of his plea bargain, we find that the sentence imposed was neither harsh nor excessive (see, People v. Shabazz, 242 A.D.2d 764, 661 N.Y.S.2d 1012).

ORDERED that the judgment is affirmed.

MEMORANDUM DECISION.

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