People v. Dawkins , 146 A.D.3d 898 ( 2017 )

People v Dawkins (2017 NY Slip Op 00317)

People v Dawkins

2017 NY Slip Op 00317

Decided on January 18, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.

2015-08432
(Ind. No. 3971/12)

[*1]The People of the State of New York, respondent,

v

Michael Dawkins, appellant.

Lynn W. L. Fahey, New York, NY, for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Donnelly, J.), imposed September 3, 2015, upon his conviction of attempted murder in the second degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v Dawkins, 131 AD3d 482).

ORDERED that the resentence is affirmed.

Under the circumstances of this case, the defendant's purported waiver of the right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 265; People v Lopez, 6 NY3d 248; People v Brown, 122 AD3d 133), and, thus, does not preclude review of his claim that the Supreme Court improvidently exercised its discretion in denying youthful offender treatment (cf. People v Pacherille, 25 NY3d 1021, 1024).

" The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case'" (People v Mullings, 83 AD3d 871, 872, quoting People v Ortega, 114 AD2d 912, 912). Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see CPL 720.20[1]; People v Green, 110 AD3d 825, 826; People v Williams, 110 AD3d 746, 747; People v Certain, 108 AD3d 681).

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court