People v. Green

Appeals by defendant from (1) a judgment of the County Court, Nassau County, rendered April 11, 1979, convicting him of attempted burglary third degree, upon his plea of guilty, and imposing an indeterminate sentence of imprisonment with a maximum of three years, and (2) an amended judgment of the same court, rendered April 16, 1979, which (a) revoked a sentence of probation which had been imposed upon defendant’s adjudication as a youthful offender and (b) sentenced him to an indeterminate term of imprisonment with a maximum of three years, to be served consecutively with the sentence imposed on April 11,1979. Judgment rendered April 11, 1979, affirmed. Amended judgment, rendered April 16, 1979, modified, as a matter of discretion in the interest of justice, by deleting the provision that the sentence is to be served consecutively with *626the previously imposed sentence and substituting therefor a provision that the sentences are to run concurrently. As so modified, amended judgment affirmed. Inasmuch as the defendant had been previously adjudicated a youthful offender following his conviction of a felony, he was ineligible for youthful offender treatment following his subsequent conviction of the crime of attempted burglary in the third degree (see CPL 720.10, subd 2, par [c]). The issue concerning the constitutionality of the youthful offender statute (see CPL 720.10), which had not been raised by the defendant previously in the County Court and is submitted for the first time on appeal, is deemed waived (see People v Drummond, 40 NY2d 990; People v McLaughlin, 55 AD2d 1000). The sentence imposed on April 16, 1979 was excessive to the extent indicated herein (see People v Matthew John G., 60 AD2d 919; People ex rel. Fitzgibbons v Krueger, 66 Misc 2d 146). Lazer, J. P., Gibbons, Gulotta and Cohalan, JJ., concur.