People v. Calderon

167 A.D.2d 651, 562 N.Y.S.2d 874, 1990 N.Y. App. Div. LEXIS 13304

Opinion

Appeal from a judgment of the County Court of Albany County (Keegan, J.), rendered January 19, 1990, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant contends on appeal that County Court exceeded its authority and abused its discretion in revoking his adjudication as a youthful offender at resentencing. First, the plea agreement did not include any guarantee that defendant would be adjudicated a youthful offender. In addition, County Court could not adjudicate defendant a youthful offender and at the same time impose a prison sentence of 2 to 6 years (see, CPL 720.20 [3]; Penal Law § 60.02). Having done so, the court had the power "to correct its sentence, which was illegal as it stood, by immediately revoking the youthful offender adjudication” (People v Magee, 116 AD2d 742). Finally, given the fact that the sentence was within the plea bargain and County Court found it appropriate in view of the nature of the crime, there was no abuse of discretion in sentencing defendant to 2 to 6 years’ imprisonment.

Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Mercure, JJ., concur.