People v. McGriff

47 A.D.3d 1165, 849 N.Y.S.2d 731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2008
• Status: Published

Opinion

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered July 11, 2002, convicting defendant following a nonjury trial of the crime of criminal sale of a controlled substance in the fifth degree.

Defendant was charged in an indictment with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. He waived his right to a jury trial, was found guilty of criminal sale of a controlled substance in the fifth degree and was sentenced as a second felony offender to 2 to 4 years in prison. Defendant appeals.

Defendant asserts that County Court improperly sentenced him as a second felony offender based upon his February 1999 conviction of robbery in the second degree. The record establishes that defendant was 16 years old at the time he committed this crime and that he served lVs to 4 years in a facility operated by the State Division for Youth. There is no indication that he was adjudicated a youthful offender. While “[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense” (CPL 720.35 [1]) and, therefore, may not be used to establish second felony offender status for purposes of sentencing (see People v Adams, 281 AD2d 707, 708 [2001]), we cannot conclude on the record before us that defendant was adjudicated a youthful offender with respect to the prior robbery conviction. Consequently, the sentence was not illegal. Defendant’s remaining arguments have been considered and are lacking in merit.

Peters, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.