People v Fisher

People v Fisher 2006 NY Slip Op 09908 [35 AD3d 1276] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Charles J. Fisher, Appellant. (Appeal No. 1.)

—[*1]Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered May 11, 2005. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree (four counts), robbery in the second degree (two counts) and criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, four counts of robbery in the first degree (Penal Law § 160.15 [3], [4]). In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (§ 160.15 [4]) and attempted robbery in the first degree (§§ 110.00, 160.15 [4]). With respect to appeal No. 2, we reject defendant's contention that attempted robbery in the first degree under Penal Law §§ 110.00 and 160.15 (4) is a nonexistent crime (see People v Durden, 219 AD2d 605, 605-606 [1995], lv denied 87 NY2d 900 [1995]; see also People v Miller, 87 NY2d 211, 216-217 [1995]). Also with respect to appeal No. 2, Supreme Court did not abuse its discretion in denying defendant's request for youthful offender status (see People v Dorman, 5 AD3d 1094 [2004], lv denied 2 NY3d 798 [2004]), and the sentence is not unduly harsh or severe. In view of our determination affirming the judgment in appeal No. 2, we reject defendant's further contention that the plea in appeal No. 1 must be vacated (see People v Taylor, 4 AD3d 875, 876 [2004], lv denied 3 NY3d 648 [2004]; People v Butler, 2 AD3d 1459 [2003], lv denied 3 NY3d 637 [2004]; cf. People v Fuggazzatto, 62 NY2d 862, 863 [1984]). Present—Martoche, J.P., Smith, Centra and Green, JJ.