| People v Clark |
| 2011 NY Slip Op 04320 [84 AD3d 1647] |
| May 26, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jamaal Clark,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered May 7, 2010, convicting defendant upon his plea of guilty of the crime of robbery in thesecond degree.
Defendant and his codefendant jointly were indicted and charged with two counts of robberyin the second degree. In full satisfaction thereof, defendant pleaded guilty to one count of robberyin the second degree and was sentenced to the agreed-upon prison term of 3½ yearsfollowed by five years of postrelease supervision. Defendant now appeals, contending thatCounty Court abused its discretion in denying his application for youthful offender status.
We affirm. "The decision to grant or deny youthful offender status rests within the soundexercise of the sentencing court's discretion and, absent a clear abuse of that discretion, itsdecision will not be disturbed" (People v McLucas, 58 AD3d 950, 951 [2009] [citationsomitted]; see People v Boyce, 2AD3d 984, 987 [2003], lv denied 2 NY3d 796 [2004]; People v Mettler, 259AD2d 834, 835 [1999]). Although the Probation Department recommended that defendant beaccorded youthful offender status, that recommendation was not binding on the sentencing court(see People v Boler, 177 AD2d 738, 739 [1991]), and defendant was aware that his pleaagreement did not include youthful offender treatment (see generally People v Shoaf, 63AD3d [*2]1660 [2009], lv denied 13 NY3d 839 [2009];People v Wise, 29 AD3d 1216,1217 [2006], lv denied 7 NY3d 852 [2006]). Additionally, while mitigating factorsindeed exist, including defendant's age at the time of the offense (17), lack of a prior criminalhistory and stated remorse, the record nonetheless reflects that defendant was a willingparticipant in the underlying robbery. Specifically, defendant admitted during his plea colloquythat he agreed to aid his codefendant in the robbery, accepted a hammer from his codefendantand carried it on his person during the commission of the crime and was aware that hiscodefendant was armed with a weapon, which defendant believed (albeit erroneously) to be a realgun. Further, the record supports County Court's finding that defendant repeatedly attempted tominimize his role in the crime. Under these circumstances, we cannot say that County Courtabused its discretion in denying defendant's application for youthful offender treatment (see People v Francis, 83 AD3d1119, 1123 [2011]; see generallyPeople v Smith, 34 AD3d 1127 [2006]).
Malone Jr., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.