| People v Peterson |
| 2015 NY Slip Op 02994 [127 AD3d 1333] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1](April 9, 2015)
| The People of the State of New York, Respondent, vClint R. Peterson, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Delaware County(Becker, J.), rendered June 28, 2010, upon a verdict convicting defendant of the crimesof promoting a sexual performance by a child and possessing a sexual performance by achild.
Defendant, then 17 years old, electronically disseminated a sexually explicit imagedepicting a prepubescent female child to an undercover police officer posing as a13-year-old girl. He was thereafter charged with promoting a sexual performance by achild and possessing a sexual performance by a child and, following a jury trial, wasconvicted on both counts. County Court declined to grant defendant youthful offendertreatment and sentenced him to concurrent terms of six months in jail and a 10-year termof probation. Defendant appeals.
Defendant's sole challenge on appeal concerns County Court's denial of youthfuloffender status. It is settled that "[t]he decision to grant or deny youthful offender statusrests within the sound exercise of the sentencing court's discretion and, absent a clearabuse of that discretion, its decision will not be disturbed" (People v McLucas,58 AD3d 950, 951 [2009]; accord People v Brodhead, 106 AD3d 1337, 1337 [2013],lv denied 22 NY3d 1087 [2014]; see People v Daniels, 106 AD3d 1189, 1190 [2013], lvdenied 21 NY3d 1014 [2013]). Factors to be considered in determining whether togrant youthful offender status include "the gravity of the crime and manner in which itwas committed, mitigating circumstances, defendant's prior criminal record, prior acts ofviolence, recommendations in the presentence reports, defendant's reputation, the level ofcooperation with authorities, defendant's attitude toward society and [*2]respect for the law, and the prospects for rehabilitation andhope for a future constructive life" (People v Cruickshank, 105 AD2d 325, 334[1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]; accord People v Jeffrey VV.,88 AD3d 1159, 1159 [2011]; People v Ferguson, 285 AD2d 901, 901[2001], lv denied 96 NY2d 939 [2001]).
In making its determination, County Court took into consideration several favorablefactors, such as defendant's age at the time of the offense, lack of criminal history,excellent reputation in the community, humanitarian efforts and cooperation with policefollowing his arrest by providing a written statement in which he admitted to possessingand sending the sexually explicit photograph that ultimately led to the charges againsthim. However, County Court was justifiably concerned about not only the nature of thecrimes for which defendant was convicted—the possession and dissemination of asexually explicit image involving a prepubescent child—but also the hundreds ofadditional pornographic images of young girls that were discovered upon a forensicanalysis of defendant's computer following his arrest.[FN*] The court appropriately observed thatdefendant's possession of the sexually explicit image that formed the basis of hisconvictions was not an isolated incident borne out of "curiosity," and both the prepleaand presentencing report concluded that defendant was being dishonest about the ages ofthe children in the photographs that he was viewing and whether he had saved any of theimages that he had received.
In addition, County Court relied upon the negative recommendation of the ProbationDepartment as set forth in the presentence report, which noted defendant's lack ofremorse and failure to accept responsibility for his actions. Also supportive of the court'sdenial of youthful offender treatment is defendant's failure to obtain a court-orderedmental health evaluation on the basis that, among other claimed reasons, he "[did] notbelieve that he need[ed] treatment." While defendant strongly argues that his conductshould be viewed merely as youthful "sexting" rather than criminal conduct, he does notchallenge any of the aforementioned factors or dispute the fact that he engaged inconduct that constituted the crimes for which he was convicted. Under the circumstancespresented here, we find no abuse of County Court's discretion in refusing defendantyouthful offender status, nor do we discern any reason to grant youthful offendertreatment in the interest of justice (see People v Fernandez, 106 AD3d 1281, 1286 [2013]; People v Clark, 84 AD3d1647, 1647-1648 [2011]; People v Terpening, 79 AD3d 1367, 1368 [2010], lvdenied 16 NY3d 837 [2011]; People v Driggs, 24 AD3d 888, 889 [2005]; comparePeople v Jeffrey VV., 88 AD3d at 1159-1160).
Lahtinen, Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Contrary to defendant'scontention, County Court acted well within its discretion in considering the forensicreport for sentencing purposes. The report, which was prepared by an investigator whohad completed hundreds of hours of training in computer forensics and had conductedsimilar forensic analyses in over 20 cases, was shown to be reliable and accurate anddefense counsel had the opportunity to review and respond to it (see People vHansen, 99 NY2d 339, 345 [2003]; People v Massmann, 13 AD3d 808, 809 [2004]; Peoplev Mason, 299 AD2d 724, 726 [2002], lv denied 100 NY2d 564 [2003];People v Baker, 292 AD2d 644, 645 [2002], lv denied 98 NY2d 635[2002]).