People v Darius B.

2016 NY Slip Op 08371 [145 AD3d 793]

December 14, 2016

Appellate Division, Second Department

As corrected through Wednesday, February 1, 2017

[*1]

The People of the State of New York,Respondent, v Darius B., Appellant.

Lynn W.L. Fahey, New York, NY, for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove andThomas M. Ross of counsel), for respondent.

Appeal by the defendant from an amended judgment of the Supreme Court, KingsCounty (Miller, J.) rendered October 31, 2014, convicting him of robbery in the firstdegree, upon his plea of guilty, and imposing sentence.

Ordered that the amended judgment is reversed, as a matter of discretion in theinterest of justice, the conviction is deemed vacated and replaced with a finding that thedefendant is a youthful offender (see CPL 720.20 [3]), the sentence is vacated,and the matter is remitted to the Supreme Court, Kings County, for the imposition of asentence pursuant to Penal Law § 60.02 and for further proceedings inaccordance with CPL 720.35.

Contrary to the People's contention, the defendant's purported waiver of the right toappeal was invalid (see People vBradshaw, 18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 257 [2006]; People v Brown, 122 AD3d133 [2014]), and thus does not preclude review of his claim that he should havebeen afforded youthful offender treatment (cf. People v Pacherille, 25 NY3d 1021 [2015]).

On July 15, 2011, just three weeks after he had turned 14, the defendant participatedin a robbery with several older youths, one of whom threatened the complainant with aknife. Nearly two years later, the defendant was arrested and indicted with 13 others forvarious counts of robbery and conspiracy to commit robberies. Although the defendantwas charged with engaging in the conspiracy, he was alleged to have been physicallypresent at only the 2011 robbery. He was several years younger than nearly all of theother participants and had no prior contact with the criminal justice system. Thedefendant pleaded guilty to robbery in the first degree (see Penal Law§ 160.15 [3]) and petit larceny with the promise that if he successfullycompleted a "Project Redirect" program, the felony would be dismissed.

Upon a finding that the defendant was noncompliant with the terms of the program,the Supreme Court sentenced him on the robbery in the first degree conviction to fiveyears imprisonment with 21/2 years of postrelease supervision. The courtconsidered but rejected youthful offender treatment. The court also, at sentencing,dismissed the count of petit larceny. Subsequently, it was realized that the sentenceimposed was illegal inasmuch as the defendant had been a juvenile offender at the timeof the commission of the crime (see Penal Law §§ 10.00 [18][2]; [*2]30.00 [2]). Consequently, on October 31, 2014,the court sentenced him as a juvenile offender to 12/3 to 5 years ofimprisonment (see Penal Law § 70.05), again declining to accordhim youthful offender status. The defendant appeals from the amended judgment,contending that the Supreme Court should have granted his request for youthful offendertreatment. We agree.

Initially, we note that it is uncontested that the defendant is eligible for youthfuloffender treatment because he was charged with being a juvenile offender (seeCPL 720.10 [1]; Penal Law § 60.10 [1]; People v Stump, 100 AD3d 1457, 1458 [2012]), and hewas convicted of Penal Law § 160.15 (3), which is not an armed felony(see CPL 720.10 [2]; 1.20 [41]; People v Flores, 222 AD2d 450 [1995];People v Ortiz, 97 AD2d 710 [1983]). "The youthful offender provisions of theCriminal Procedure Law emanate from a legislative desire not to stigmatize youths. . . with criminal records triggered by hasty or thoughtless acts which,although crimes, may not have been the serious deeds of hardened criminals" (Peoplev Drayton, 39 NY2d 580, 584 [1976]). Here, the evidence before the court showedthat the defendant participated with a group of other youths in a single robbery at an agewhen he was barely capable of being held criminally responsible for his conduct (seePenal Law § 30.00). Although the defendant did not fully comply withthe requirements of the "Project Redirect" program, there is no indication in the recordthat he is incapable of rehabilitation. Indeed, no further criminal conduct was allegedduring that time. Under these circumstances, in view of the defendant's tender years,background, and lack of juvenile or criminal record, the interest of justice would beserved by relieving the defendant from the onus of a criminal record (see CPL720.20 [1] [a]; People v CharlesS., 102 AD3d 896 [2013]; People v David S., 78 AD3d 1205, 1206 [2010]; People v Bruce L., 44 AD3d688 [2007]; People v NadjaB., 23 AD3d 394 [2005]; People v Senghor D., 240 AD2d 589[1997]).

In light of our determination, we do not reach the defendant's remaining contention.Rivera, J.P., Chambers, Roman and Brathwaite Nelson, JJ., concur.