People v. Bermudez

Appellate Division of the Supreme Court of New York

People v. Bermudez

177 A.D.2d 323, 576 N.Y.S.2d 26, 1991 N.Y. App. Div. LEXIS 14395

Appellate Division of the Supreme Court of the State of New York·Decided November 12, 1991·Published·Cited by 2 cases

Opinion

Judgment, Supreme Court, Bronx County (Daniel J. Sullivan, J.), rendered May 21, 1990, convicting defendant, upon his guilty plea, of attempted murder in the second degree and assault in the first degree, and sentencing him to concurrent indeterminate prison terms of from 3 to 9 years, is unanimously modified, on the law, to reduce defendant’s sentence for first degree assault to 2 Vs to 7 years, and otherwise affirmed.

Defendant’s argument that the sentencing court should have granted him youthful offender treatment is unpreserved, since defendant failed to move to withdraw his plea on this ground (People v McHale, 165 AD2d 800, lv denied 76 NY2d 1023). In any case, the court properly determined that defendant was not eligible for youthful offender status since he was convicted of an armed felony and there were no mitigating circumstances (CPL 720.10 [2] [a] [ii]; [3]).

As the People concede, the maximum sentence that could be imposed on defendant as a juvenile offender for assault in the first degree is 2⅓ to 7 years (Penal Law § 70.05), and we modify accordingly. Concur—Sullivan, J. P., Milonas, Wallach and Kassal, JJ.

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Judgment, Supreme Court, Bronx County (Daniel J. Sullivan, J.), rendered May 21, 1990, convicting defendant, upon his guilty plea, of attempted murder in the second degree and assault in the first degree, and sentencing him to concurrent indeterminate prison terms of from 3 to 9 years, is unanimously modified, on the law, to reduce defendant’s sentence for first degree assault to 2 Vs to 7 years, and otherwise affirmed.

Defendant’s argument that the sentencing court should have granted him youthful offender treatment is unpreserved, since defendant failed to move to withdraw his plea on this ground (People v McHale, 165 AD2d 800, lv denied 76 NY2d 1023). In any case, the court properly determined that defendant was not eligible for youthful offender status since he was convicted of an armed felony and there were no mitigating circumstances (CPL 720.10 [2] [a] [ii]; [3]).

As the People concede, the maximum sentence that could be imposed on defendant as a juvenile offender for assault in the first degree is 2⅓ to 7 years (Penal Law § 70.05), and we modify accordingly. Concur—Sullivan, J. P., Milonas, Wallach and Kassal, JJ.

People v. Bermudez, 177 A.D.2d 323, 576 N.Y.S.2d 26, 1991 N.Y. App. Div. LEXIS 14395 (N.Y. Ct. App. 1991).

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Opinion

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