People v. Henderson

Dec 30, 2002
Versions:300 A.D.2d 1119
750 N.Y.S.2d 923

—Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered April 12, 2000, convicting defendant upon his plea of guilty of attempted burglary in the second degree (two counts).

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). Defendant failed to preserve for our review his contention that Supreme Court abused its discretion in failing to adjudicate him a youthful offender (see CPL 470.05 [2]; People v Foote, 280 AD2d 991). In any event, that contention is without merit. “The determination whether to grant youthful offender status rests within the sound discretion of the court and ‘depends upon all the attending facts and circumstances of the case’ ” (People v Smith, 286 AD2d 878, 878, lv denied 98 NY2d 641; see People v Ortega, 114 AD2d 912, lv denied 67 NY2d 887). Here, defendant previously had been adjudicated a juvenile delinquent and was placed in a residential facility, but he was allowed to return to his home each weekend. The crimes to which defendant pleaded guilty herein involved two of several burglaries that occurred during those weekend leaves, including two separate burglaries of the home of an 82-year-old victim who was confined to a wheelchair. We further conclude that the sentence is not unduly harsh or severe. Present — Pigott, Jr., P.J., Green, Pine, Kehoe and Lawton, JJ.