| People v Jeffrey VV. |
| 2011 NY Slip Op 07525 [88 AD3d 1159] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey VV.,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered May 11, 2010, convicting defendant upon his plea of guilty of the crime of possessingan obscene sexual performance by a child.
After defendant pleaded guilty to possessing an obscene sexual performance by a child,County Court denied his request for youthful offender treatment and sentenced him to six monthsin jail and 10 years of probation. Defendant now appeals, claiming that County Court erred in notadjudicating him a youthful offender.
The decision to grant or deny youthful offender status is left to the sound discretion of thesentencing court (see People vClark, 84 AD3d 1647, 1647 [2011]; People v Driggs, 24 AD3d 888, 889 [2005]). The purpose sought tobe served by conferring youthful offender treatment is to avoid " '[stigmatiz]ing youths betweenthe ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which,although crimes, may not have been the serious deeds of hardened criminals' " (People vCruickshank, 105 AD2d 325, 333 [1985], affd sub nom. People v Dawn Maria C., 67NY2d 625 [1986], quoting People v Drayton, 39 NY2d 580, 584 [1976]; see People vLyman HH., 215 AD2d 847, 848 [1995]). The factors to be considered in determiningwhether such an adjudication should be rendered are "the gravity of the crime and [*2]manner in which it was committed, mitigating circumstances, [the]defendant's prior criminal record, prior acts of violence, recommendations in the presentencereports, [the] defendant's reputation, the level of cooperation with authorities, [the] defendant'sattitude toward society and respect for the law, and the prospects for rehabilitation and hope for afuture constructive life" (People v Cruickshank, 105 AD2d at 334; see People vAndrea FF., 174 AD2d 865, 867 [1991]).
Here, in denying youthful offender status, County Court was understandably concerned aboutthe nature of defendant's offense—the possession of sexually explicit material involvingunderage individuals. However, we note that when the crime was committed, defendant was 18years of age, had no prior contact with law enforcement, and had been deemed by a psychologistnot to pose a threat to the community and unlikely to commit the same or a similar offense in thefuture. This psychological evaluation, based on a detailed examination of defendant performedprior to sentencing, revealed that he was sexually interested in males of his own age and had anormal understanding of appropriate sexual behavior. It also noted that defendant wasparticipating in counseling and could become a productive member of society if he continuedcounseling and received vocational training. Given this background and defendant's willingnessto accept full responsibility for his conduct, we choose to exercise our discretion (see Peoplev Lyman HH., 215 AD2d at 848; People v Andrea FF., 174 AD2d at 867; Peoplev Cruickshank, 105 AD2d at 337) by vacating the conviction and adjudicating defendant ayouthful offender.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, conviction vacated, defendant isdeclared to be a youthful offender, and matter remitted to the County Court of Columbia Countyfor resentencing.