Calendar Date: November 15, 2017
Patnode, Rural Law Center of New York, Castleton (Cynthia
Feathers of counsel), for appellant, and appellant pro se.
M. Carusone, Acting District Attorney, Lake George (Benjamin
R. Smith of counsel), for respondent.
Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
(1) from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered August 21, 2013, which sentenced
defendant upon his adjudication as a youthful offender, and
(2) by permission, from an order of said court, entered
August 11, 2016, which denied defendant's motion pursuant
to CPL 440.20 to set aside the sentence, without a hearing.
was 16 years old when, in January 2013, he waived indictment,
waived his right to appeal and pleaded guilty to a superior
court information charging him with possessing an obscene
sexual performance by a child. The plea agreement
contemplated that he would be placed upon interim probation
for one year. If defendant successfully completed the term of
interim probation, he would be permitted to plead guilty to a
misdemeanor charge and would be adjudicated as a youthful
offender and sentenced to six years of probation. If he
failed to do so, he faced a potential prison term of
1⅓ to 4 years and had no guarantee of youthful
was quickly charged with violating the terms of his interim
probation in numerous respects but, in the hope of avoiding
sending him to prison, efforts ensued to place him in a
residential treatment facility. Defendant apparently tired of
those ongoing efforts and, despite County Court urging him to
continue pursuing residential treatment and warning that it
would "sentence [him] to 1⅓ to 4 years in
state prison" if he admitted to the probation
violations, he chose to enter admissions in August 2013.
County Court adjudicated defendant as a youthful offender and
sentenced him to a prison term of 1⅓ to 4 years.
Defendant filed a pro se motion pursuant to CPL 440.20 to set
aside his sentence in June 2016, arguing that the sentence
imposed did not comport with the terms of his plea agreement.
County Court denied that motion without a hearing. Defendant
now appeals from the judgment and, by permission, from the
order denying his CPL 440.20 motion. 
affirm. Upon his direct appeal, defendant suggests that this
Court invoke its interest of justice jurisdiction to reverse
the judgment of conviction and dismiss the underlying
indictment. To that end, defendant submitted a pro se
supplemental brief in which he argued that, while he made no
effort to withdraw his guilty plea, he was a high school
student at the time of the offense and he should not have
been charged and punished for possessing an obscene image of
a girl near his own age. He overlooks that his present
circumstances arise from the fact that he failed to comply
with the terms of interim probation and then rebuffed efforts
to undergo residential treatment. We are accordingly
satisfied that this is not the "rare and unusual case
[that] cries out for fundamental justice beyond the confines
of conventional considerations" so as to warrant
reversal (People v Williams, 145 A.D.3d 100, 107
 [internal quotation marks and citations omitted];
see CPL 470.15  [a]).
extent that defendant further contends that the sentence
imposed was harsh and excessive, he may arguably advance that
claim despite the presence of an appeal waiver that
referenced a sentence of probation should he fail to
successfully complete his interim probation (see People v
Johnson, 14 N.Y.3d 483, 486-487 ). He did receive
a sentence that was contemplated by the plea agreement should
he violate interim probation, however, and "we find no
extraordinary circumstances nor any abuse of discretion
warranting a reduction of the sentence in the interest of
justice" (People v Hilder, 79 A.D.3d 1459, 1459
, lv denied 16 N.Y.3d 798');">16 N.Y.3d 798 ; see
People v DeMarco, 60 A.D.3d 1107, 1109 ). The
judgment is therefore affirmed.
to defendant's motion to set aside his sentence pursuant
to CPL 440.20, County Court erred in denying it based upon
the procedural bar set forth in CPL 440.10 (2) (c), which
"applies only to motions made pursuant to section
440.10" (People v McCants, 15 A.D.3d 892, 893
; see People v Povoski, 111 A.D.3d 1350, 1351
). Defendant nonetheless failed to establish that the
sentence imposed was "unauthorized, illegally imposed or
otherwise invalid as a matter of law" so as to warrant
any relief (CPL 440.20 ). Defendant asserted that, upon
violating the terms of his interim probation, the plea
agreement called for him to receive a probation sentence of
10 years. In that regard, defense counsel did state prior to
the plea colloquy that one of his colleagues had negotiated
the plea agreement and that he had a written plea offer from
the People that included a "no prison" promise
should defendant violate the terms of interim probation.
Defense counsel's confusion made its way into the written
appeal waiver executed by defendant.
Court made it clear to defendant and defense counsel,
however, that it would not make a "no prison"
commitment, was "keep[ing] [its] options open" and
that defendant could "go to prison" if he did plead
guilty and then violated the terms of his interim probation.
Defendant confirmed that he understood this and still wanted
to plead guilty. During the plea colloquy that followed, the
terms of the plea arrangement were clearly stated, and
defendant acknowledged understanding that he would "go
to state prison for up to 4 long years" if he failed to
comply with them. Defendant was again advised that he faced a
prison sentence of 1⅓ to 4 years before he chose
to admit to violating the terms of his interim probation.
Defendant was accordingly well aware that County Court
reserved the right to impose a prison sentence should he
violate the terms of his interim probation and offered no
objection to that state of affairs at any point prior to
sentencing. Thus, having complied with the terms of the plea
agreement in imposing sentence (see e.g. People v
Selikoff, 35 N.Y.2d 227, 242 , cert
denied 419 U.S. 1122');">419 U.S. 1122 ; People v Meddaugh,
150 A.D.3d 1545, 1547 ), County Court properly denied
defendant's motion without a hearing (see CPL
440.30 ; People v Westerling, 128 A.D.3d 1178,
1179 ; People v Cooper, 258 A.D.2d 815, 816
, lv denied 93 N.Y.2d 1016');">93 N.Y.2d 1016 ).
Jr., J.P., Rose, Mulvey and ...