| People v Stitt |
| 2016 NY Slip Op 04861 [140 AD3d 1783] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJose J. Stitt, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered August 12, 2013. The judgment convicted defendant, upon his plea ofguilty, of robbery in the second degree and robbery in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of robbery in the second degree (Penal Law § 160.10 [2] [b]) androbbery in the third degree (§ 160.05). We reject defendant's contention thatSupreme Court erred in failing to consider adequately his eligibility for youthful offendertreatment (see generally Peoplev Middlebrooks, 25 NY3d 516, 525-527 [2015]; People v Rudolph, 21 NY3d497, 499-501 [2013]). At sentencing, the court denied defendant's request foryouthful offender treatment, and attributed the denial to the seriousness of the crimes,defendant's prior legal history, and defendant's failure to take responsibility for hisactions. The court's remarks establish that it "made an independent determination"whether to adjudicate defendant a youthful offender (People v Richardson, 128 AD3d 988, 989 [2015], lvdenied 25 NY3d 1206 [2015]; see People v Fate, 117 AD3d 1327, 1329 [2014], lvdenied 24 NY3d 1083 [2014]; see generally People v Jackson, 119 AD3d 1361,1361-1362 [2014], lv denied 23 NY3d 1063 [2014]), and that it did not denydefendant's request merely because defendant had been convicted of an armed felony(cf. Middlebrooks, 25 NY3d at 525-526), or in deference to the plea agreement(cf. Rudolph, 21 NY3d at 501; People v Potter, 114 AD3d 1183, 1184 [2014]).
We recognize that the court did not explicitly address the threshold issue whetherdefendant was an eligible youth notwithstanding his conviction of an armed felony(see CPL 720.10 [2] [a] [ii]; [3]), and that, in general, a court sentencing adefendant whose only barrier to youthful offender eligibility is his or her conviction of anarmed felony "is required to determine on the record whether the defendant is an eligibleyouth by considering the presence or absence of the factors set forth in CPL 720.10 (3)"(Middlebrooks, 25 NY3d at 527). In our view, however, a court in an armedfelony case can satisfy its obligation under Middlebrooks by declining toadjudicate the defendant a youthful offender after consideration on the record of factorspertinent to a determination whether an eligible youth should be adjudicated a youthfuloffender (see id. at 527; People v Thomas R.O., 136 AD3d 1400, 1402 [2016]),thereby demonstrating that it implicitly resolved the threshold issue of eligibility in thedefendant's favor (cf. People v Lowe, 25 NY3d 516, 521 n 1 [2015]), orassumed, arguendo, that the defendant was an eligible youth (see e.g. People v Lewis, 128AD3d 1400, 1400 [2015], lv denied 25 NY3d 1203 [2015]). We thereforeconclude that the record here "belies defendant's contention that the court [erred infailing] to determine whether he was eligible for youthful offender status" (People vMichael A.C. [appeal No. 2], 128 AD3d 1359, 1360 [2015], lv denied 25NY3d 1168 [2015]; cf. People vMelendez, 132 AD3d 471, 471 [2015]). Present—Whalen, P.J., Carni,NeMoyer, Troutman and Scudder, JJ.