People v. Khapesi

Appellate Division of the Supreme Court of New York

People v. Khapesi

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2016

Docket4777/10 945 1342/13 944

StatusPublished

Cited by1 cases

This text of 138 A.D.3d 622 (People v. Khapesi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Khapesi, 138 A.D.3d 622, 28 N.Y.S.3d 875 (N.Y. Ct. App. 2016).

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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.

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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.

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Bluebook (online)

138 A.D.3d 622, 28 N.Y.S.3d 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-khapesi-nyappdiv-2016.

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