| People v Amir W. |
| 2013 NY Slip Op 04931 [107 AD3d 1639] |
| June 28, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AmirW., Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered January 15, 2010. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by adjudicating defendant a youthfuloffender and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]). We agree with defendant that the waiver of the right to appeal is invalidbecause "the minimal inquiry made by County Court was insufficient to establish that thecourt engage[d] the defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice" (People v Box, 96 AD3d 1570, 1571 [2012], lvdenied 19 NY3d 1024 [2012] [internal quotation marks omitted]; see People v Hamilton, 49AD3d 1163, 1164 [2008]; People v Brown, 296 AD2d 860, 860 [2002],lv denied 98 NY2d 767 [2002]).
We further agree with defendant that he should have been afforded youthful offenderstatus. "The youthful offender provisions of the Criminal Procedure Law emanate from alegislative desire not to stigmatize youths between the ages of 16 and 19 with criminalrecords triggered by hasty or thoughtless acts which, although crimes, may not have beenthe serious deeds of hardened criminals" (People v Drayton, 39 NY2d 580, 584[1976]; see generally CPL 720.20). The factors to be considered in determiningan application for youthful offender treatment include "the gravity of the crime andmanner in which it was committed, mitigating circumstances, defendant's prior criminalrecord, prior acts of violence, recommendations in the presentence reports, defendant'sreputation, the level of cooperation with authorities, defendant's attitude toward societyand respect for the law, and the prospects for rehabilitation and hope for a futureconstructive life" (People v Cruickshank, 105 AD2d 325, 334 [1985], affdsub nom. People v Dawn Maria C., 67 NY2d 625 [1986]; see People vShrubsall, 167 AD2d 929, 930 [1990]).
A defendant between the ages of 16 and 19 who, like defendant herein, "has been[*2]convicted of an armed felony offense. . . is an eligible youth if the court determines that . . . [thereare] mitigating circumstances that bear directly upon the manner in which the crime wascommitted" (CPL 720.10 [3] [i]), and we conclude that such is the case here. The recordreflects that defendant was the victim of a brutal attack by multiple perpetrators the dayprior to the armed felony offense at issue herein. When defendant was arrested by thepolice on the day of that offense, he told them that a group of people had assaulted himwith wooden boards. The police report states that defendant had a "large contusion" and"board mark" on the left side of his head as well as scrapes and bruises on his hands andarms. Additionally, when defendant was subsequently examined at the jail, he was notedto have mild head trauma and a small hematoma on his scalp. Defendant told the policethat he had fired a single shot into the porch of his attackers' house "to send a message tothem to stop messing with him as he was a serious threat if need be." According todefendant, he knew that his attackers would not be home and, indeed, the record reflectsthat the residence was unoccupied at the time of the shooting.
Defendant was 16 years old at the time of the offense and had no prior criminalrecord. After his arrest, defendant cooperated with the police and provided a writtenstatement in which he admitted his guilt and expressed remorse for his conduct. Both thepresentence report (PSR) and a memorandum from the Center for CommunityAlternatives (CCA) detail defendant's upbringing, which included abuse at the hands ofhis mother's boyfriends and his maternal grandfather. Defendant's father was in and outof prison for most of defendant's childhood, including serving an eight-year term ofincarceration for robbery. The CCA memorandum concludes that, "[w]ith the properguidance, direction, and services, [defendant] may develop into a healthy, productivemember of his community," and both the PSR and the CCA recommend youthfuloffender treatment (see Shrubsall, 167 AD2d at 931). We conclude that despitedefendant's difficult upbringing, he has the potential to lead a law-abiding life, and wedeem it appropriate to modify the judgment as a matter of discretion in the interest ofjustice by adjudicating him a youthful offender (see People v William S., 26 AD3d 867, 868 [2006]; seealso People v Noel, 106 AD2d 854, 855 [1984]; see generally People v Clarence S., 5 AD3d 982, 983[2004]). In light of our determination, we need not address defendant's remainingcontentions. Present—Centra, J.P., Peradotto, Sconiers, Valentino and Whalen, JJ.