People v. Khapesi

138 A.D.3d 622, 28 N.Y.S.3d 875

Opinion

Judgments, Supreme Court, New York County (Charles H. Solomon, J.), rendered November 26, 2013, as amended February 5, 2014, convicting defendant, upon pleas of guilty, of attempted assault in the first degree and violation of probation, and sentencing him, as a second violent felony offender, to a term of seven years on the attempted assault conviction, and to a concurrent term of one year for the probation violation, unanimously affirmed.

Defendant was not entitled to a youthful offender determination in connection with the violation of probation proceeding. At the time of his 2011 attempted robbery conviction, defendant was not considered for YO treatment, was sentenced to probation without such treatment, and did not appeal. Since “to revoke a penalty of probation does not equate to annulling a sentence” (People v Thompson, 26 NY3d 678, 687 [2016]), there is no reason to apply the principles of People v Rudolph (21 NY3d 497 [2013]) to defendant’s situation. The 2011 judgment was final, and the violation of probation only resulted in a replacement of the original conditional penalty with a different punishment.

Concur — Acosta, J.R, Renwick, ManzanetDaniels, Kapnick and Gesmer, JJ.