| People v Price |
| 2017 NY Slip Op 03993 [150 AD3d 1485] |
| May 18, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Walter Price, Appellant. |
Matthew C. Hug, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (McGinty, J.),rendered February 24, 2015, convicting defendant upon his plea of guilty of the crime of criminalsexual act in the second degree.
In 2007, defendant pleaded guilty to criminal sexual act in the first degree and conspiracy inthe fourth degree and was sentenced to a term of imprisonment. Upon appeal, this Court vacatedthe underlying plea, dismissed the superior court information charging defendant with conspiracyin the fourth degree and remitted the matter for further proceedings (113 AD3d 883 [2014]).Upon remittal, defendant pleaded guilty to the reduced charge of criminal sexual act in thesecond degree—a crime committed by defendant when he was less than 19 years old. Atsentencing, County Court denied defendant's request for youthful offender status and sentenceddefendant to a prison term of 2 to 6 years—time that defendant already had served.Immediately after imposing sentence, County Court conducted a risk assessment hearing forpurposes of the Sex Offender Registration Act (see Correction Law art 6-C [hereinafterSORA]), designated defendant as a risk level two sex offender and denied defendant's request fora downward departure. Defendant now appeals—challenging both his SORA classificationand the denial of his request for youthful offender status.
Preliminarily, defendant's challenge to his risk level classification is not properly before us."[I]nasmuch as the SORA determination is not part of the criminal action" (People v Ayala, 72 AD3d 1577,1578 [2010], lv denied 15 NY3d 816 [2010]), such determination is not reviewable uponan appeal from the judgment of conviction (cf. People v Smith, 15 NY3d 669, [*2]672 [2010]; People v Brown, 141 AD3d 535, 536 [2016], lv denied 28NY3d 1026 [2016]; People vRupnarain, 123 AD3d 1372, 1373 [2014]). Rather, a challenge to a risk levelclassification properly arises upon an appeal from the order imposing such classification.
With respect to the denial of defendant's request for youthful offender status, "[t]he decisionto grant or deny youthful offender status rests within the sound exercise of the sentencing court'sdiscretion and, absent a clear abuse of that discretion, its decision will not be disturbed" (People v Brodhead, 106 AD3d1337, 1337 [2013] [internal quotation marks and citations omitted], lv denied 22NY3d 1087 [2014]; accord People vDorfeuille, 127 AD3d 1414, 1415 [2015], lv denied 26 NY3d 928 [2015]). Indetermining whether to accord a defendant youthful offender status, "the factors to be consideredinclude the gravity of the crime and manner in which it was committed, mitigatingcircumstances, [the] defendant's prior criminal record, prior acts of violence, recommendations inthe presentence reports, [the] defendant's reputation, the level of cooperation with authorities,[the] defendant's attitude toward society and respect for the law, and the prospects forrehabilitation and hope for a future constructive life" (People v Cruickshank, 105 AD2d325, 334 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]; see People v Marquis A., 145 AD3d61, 69 [2016]; People vPeterson, 127 AD3d 1333, 1334 [2015], lv denied 25 NY3d 1206 [2015]).
In evaluating defendant's request for youthful offender status, County Court took intoaccount the nature of the underlying crime and the specific conduct relative thereto, whichinvolved defendant engaging in anal sexual intercourse with a relative who was less than 13years old. Additionally, County Court considered defendant's risk of reoffending, which wasassessed as "low to moderate." In this regard, County Court noted that "low to moderate. . . [was] not a finding that there [was] a low risk"; rather, such assessment spoke toa risk of reoffending that "straddle[d] a lot of area." County Court also acknowledged that certainfactors militated in favor of granting defendant's request, including defendant's mental healthissues, previous history of abuse and lack of a prior criminal record, as well as a favorablerecommendation from the local probation department, but expressed concern that accordingdefendant youthful offender status would mean that "there would be no SORA finding." Whilewe agree with defendant that County Court should not have considered whether grantingdefendant's request for youthful offender status would allow him to circumvent SORA and itsattendant requirements, upon due consideration of all of the relevant and appropriate factors, wedo not find that County Court abused its discretion in denying defendant youthful offender status,and we decline to grant defendant such status in the interest of justice.
Peters, P.J., McCarthy, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.