| People v Stewart |
| 2016 NY Slip Op 04551 [140 AD3d 1654] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Stewart, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered August 29, 2011. The appeal was held by this Court by order entered June 19,2015, decision was reserved and the matter was remitted to Onondaga County Court forfurther proceedings (129 AD3d 1700). The proceedings were held and completed(Thomas J. Miller, J.).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: We previously held this case, reserved decision, and remitted thematter to County Court to make and state for the record its determination whetherdefendant is a youthful offender (People v Stewart, 129 AD3d 1700, 1701[2015]). Upon remittal, the court declined to adjudicate defendant a youthful offender,and we now affirm. Inasmuch as defendant was convicted of robbery in the first degree(Penal Law § 160.15 [4]), an armed felony offense (see CPL 1.20[41] [b]), he "is ineligible for a youthful offender adjudication unless the courtconcludes, insofar as relevant here, that there are 'mitigating circumstances that beardirectly upon the manner in which the crime was committed' " (People v Pulvino, 115 AD3d1220, 1223 [2014], lv denied 23 NY3d 1024 [2014]; see CPL 720.10[3] [i]). The court properly concluded that there were no such mitigating circumstancesin this case and therefore did not abuse its discretion in refusing to afford defendantyouthful offender status (seePeople v Juliano, 128 AD3d 1521, 1522 [2015], lv denied 26 NY3d 931[2015]; People v Smith, 118AD3d 1492, 1493-1494 [2014], lv denied 25 NY3d 953 [2015]; People v McPhee, 116 AD3d714, 715 [2014], lv denied 23 NY3d 1040 [2014]). Contrary to defendant'scontention, the fact that he may have used only a BB gun is not a mitigating circumstanceinasmuch as the victim testified that it appeared that defendant had a sawed-off shotgun,which he pointed at the victim's head while demanding money (see People v Henry, 76 AD3d1031, 1031 [2010]). Present—Whalen, P.J., Centra, Lindley and Scudder,JJ.