SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

831 

KA 11-01483 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAMAL H., DEFENDANT-APPELLANT. 

(APPEAL NO. 2.) 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), entered May 25, 2011. The judgment

convicted defendant, upon his plea of guilty, of burglary in the

second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: In appeal No. 2, defendant appeals from a judgment

convicting him upon his plea of guilty of burglary in the second

degree (Penal Law § 140.25 [2]). Defendant does not raise any

contentions with respect to the adjudication in appeal No. 1, and we

therefore deem abandoned any such contentions (see generally People v

Bridgeland, 19 AD3d 1122, 1123). It is undisputed that Supreme Court

originally had agreed that it would adjudicate defendant a youthful

offender in connection with his plea of guilty on the indictment in

appeal No. 2 as well as in connection with his plea of guilty on the

indictment in appeal No. 1 but that, at sentencing, the court

determined that it was not able to comply with its original sentence

promise with respect to the indictment in appeal No. 2. The court

vacated defendant’s pleas in connection with both indictments. 

Defendant thereafter again pleaded guilty to, inter alia, the

indictment in appeal No. 2.

“As a matter of law and strong public policy, a sentencing

promise made in conjunction with a plea is conditioned upon ‘its being

lawful and appropriate in light of the subsequent presentence report

or information obtained from other reliable sources’ ” (People v

Hicks, 98 NY2d 185, 188; see People v Herber, 24 AD3d 1317, 1318, lv

denied 6 NY3d 814). Contrary to defendant’s contention, “the court’s

reliance on the presentence report for its determination that
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KA 11-01483 

defendant would not be afforded youthful offender status ‘constitutes

an adequate explanation for the denial of defendant’s request for such

status’ ” (People v Wargula, 86 AD3d 929, 930, lv denied 17 NY3d 862). 

The presentence report “included mitigating and aggravating factors,

[and therefore] adequately explained the court’s reasons for denying

youthful offender status on the instant indictment” (People v DePugh,

16 AD3d 1083, 1084). To the extent that defendant contends that the

court was aware of all of the information contained in the presentence

report at the time it agreed to adjudicate defendant a youthful

offender, we note that not all of the aggravating factors that are

contained in the presentence report otherwise appear on the record. 

Thus, we are unable to review defendant’s contention that the court

abused its discretion in determining that it could not comply with the

original plea agreement because it was apprised of those factors

during a pre-plea conference. 

Entered: September 27, 2013 Frances E. Cafarell

Clerk of the Court