People v Favors

People v Favors 2018 NY Slip Op 07606 Decided on November 9, 2018 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 9, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
1170 KA 16-01987

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ADRIAN FAVORS, III, ALSO KNOWN AS "ACE," DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered July 11, 2016. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree (Penal Law

§ 140.30 [3]). We agree with defendant that, as the People correctly concede, defendant did not waive his right to appeal inasmuch as that condition was part of a prior plea agreement that was withdrawn before the instant plea was entered (see People v Shay, 130 AD3d 1499, 1499 [4th Dept 2015]; People v Graham, 187 AD2d 389, 389-390 [1st Dept 1992], lv denied 81 NY2d 840 [1993]). We nonetheless decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see People v Sakinovic, 149 AD3d 1596, 1596 [4th Dept 2017]). Finally, the sentence is not unduly harsh or severe.

Entered: November 9, 2018

Mark W. Bennett

Clerk of the Court