People v. Robinson , 59 A.D.2d 726 ( 1977 )

Appeal by defendant (1) (by permission) from an order of the Supreme Court, Kings County, entered October 20, 1976, which denied his motion to vacate a judgment and sentence of the same court, rendered September 18, 1969, and (2) as limited by his brief, from a sentence of the same court, imposed November 17, 1975. Order and sentence affirmed. The record does not show that the plea of guilty which resulted in the 1969 conviction rested in any degree on a promise that defendant would be afforded youthful offender treatment (see Santobello v New York, 404 US 257, 262; People v Caputo, 36 NY2d 653). Although the court discussed youthful offender treatment before the plea was formally entered, it is clear that the plea was not predicated on such an offer nor "bargained”, even in part, in exchange for such treatment. This is underscored by the fact that defendant did not seek to withdraw his plea when advised at sentencing that youthful offender treatment would be denied. Defendant is not, therefore, entitled to have his 1969 plea vacated. That decision renders the appeal from the 1975 sentence academic for the reason that defendant was properly sentenced as a second felony offender. Hopkins, J. P., Latham, Margett and Rabin, JJ., concur.