| People v Agee |
| 2016 NY Slip Op 04612 [140 AD3d 1704] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael D. Agee, Appellant. |
Robert M. Graff, Lockport, for defendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedMarch 14, 2013. The appeal was held by this Court by order entered June 19, 2015,decision was reserved and the matter was remitted to Niagara County Court for furtherproceedings (129 AD3d 1559 [2015]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: We previously held this case, reserved decision, and remitted thematter for County Court to make and state for the record a determination of whetherdefendant is a youthful offender (People v Agee, 129 AD3d 1559, 1561 [2015];see generally People vMiddlebrooks, 25 NY3d 516, 525-527 [2015]; People v Rudolph, 21 NY3d497, 499-501 [2013]). Upon remittal, the court declined to grant defendant youthfuloffender treatment, stating that it was "not persuaded" of the existence of "any mitigatingfactor or factors" that would render defendant an eligible youth notwithstanding hisconviction of armed felonies (see CPL 720.10 [2] [a] [ii]; [3]). We conclude thatthe court did not thereby abuse its discretion (see generally Middlebrooks, 25NY3d at 526-527). Defendant's participation in the crimes cannot be deemed "relativelyminor" (CPL 720.10 [3] [ii]), and we conclude that the court properly determined thatthere are no "mitigating circumstances that bear directly upon the manner in which the[crimes were] committed" (CPL 720.10 [3] [i]; see People v Juliano, 128 AD3d 1521, 1522 [2015], lvdenied 26 NY3d 931 [2015]; People v Smith, 118 AD3d 1492, 1493-1494 [2014], lvdenied 25 NY3d 953 [2015]). In any event, even assuming, arguendo, that there issufficient evidence of mitigating circumstances to render defendant eligible for youthfuloffender treatment, we nevertheless conclude, based on our review of the record and thefactors relevant in making a youthful offender determination (see People v Thomas R.O., 136AD3d 1400, 1402 [2016]; see generally CPL 720.20 [1] [a]), that the court'srefusal to adjudicate defendant a youthful offender was not an abuse of discretion (see People v Lewis, 128 AD3d1400, 1400 [2015], lv denied 25 NY3d 1203 [2015]), and we decline toexercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v Hall, 130 AD3d1495, 1496 [2015], lv denied 26 NY3d 968 [2015]; cf. Thomas R.O.,136 AD3d at 1403). Present—Whalen, P.J., Smith, DeJoseph and Scudder,JJ.