| People v Strong |
| 2017 NY Slip Op 05876 [152 AD3d 1076] |
[*1]
| 1 The People of the State of New York,Respondent, v Joseph Strong, Appellant. |
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Sullivan County (McGuire, J.),rendered February 18, 2015, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree (seven counts).
In satisfaction of a multicount indictment, defendant pleaded guilty to burglary in the seconddegree (seven counts), waived his right to appeal and thereafter was sentenced to an aggregateprison term of eight years, to be followed by five years of postrelease supervision. Upon appeal,we determined that, despite defendant's valid appeal waiver, to the extent that he had not beenadequately apprised that the payment of restitution was part of his plea bargain, County Courterred in imposing sentence without first offering him an opportunity to withdraw his plea (124AD3d 992, 992-993 [2015]). We also found that County Court had failed to make the requisiteyouthful offender determination (id. at 993). Accordingly, we vacated defendant'ssentence and remitted the matter for further proceedings (id.). Upon remittal, CountyCourt vacated its prior order imposing restitution, denied defendant youthful offender status and,once again, sentenced defendant, in accordance with his negotiated plea, to an aggregate prisonterm of eight years, to be followed by five years of postrelease supervision. Defendant nowappeals.
We affirm. Defendant contends that County Court abused its discretion in denying himyouthful offender status and that the sentence imposed was harsh and excessive. "[T]he decisionto grant or deny youthful offender status rests within the sound exercise of the sentencing court's[*2]discretion and, absent a clear abuse of that discretion, itsdecision will not be disturbed" (People vDorfeuille, 127 AD3d 1414, 1415 [2015] [internal quotation marks and citationomitted], lv denied 26 NY3d 928 [2015]; accord People v Clark, 84 AD3d 1647, 1647 [2011]). Upon ourreview of the record, we are unpersuaded that County Court abused its discretion in denyingdefendant's application for youthful offender status (see CPL 720.20 [1]). In making itsdetermination, County Court considered numerous mitigating circumstances, including, amongother things, defendant's youth, his lack of a criminal record or prior acts of violence, hiscooperation with authorities, his familial history and his expressed remorse for his conduct (see People v Peterson, 127 AD3d1333, 1334 [2015], lv denied 25 NY3d 1206 [2015]; People v Cruickshank,105 AD2d 325, 334-335 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625[1986]). Nevertheless, based upon the seriousness of the charges for which defendant wasconvicted and the fact that he willingly participated in seven separate and distinct residentialburglaries over a two-week period, we perceive no abuse of discretion in County Court's ultimatedecision to deny defendant youthful offender status (see People v Green, 128 AD3d 1282, 1283 [2015]; People vDorfeuille, 127 AD3d at 1415). Nor do we find any extraordinary circumstances or an abuseof discretion that would warrant a reduction of his sentence (see People v Tarver, 149 AD3d 1350, 1350 [2017]; People v Butler, 111 AD3d 1024,1025 [2013], lv denied 23 NY3d 961 [2014]). Defendant's remaining claims are withoutmerit.
McCarthy, J.P., Devine and Clark, JJ., concur.
Garry, J. (dissenting). I respectfully dissent. Other than retribution, there are three establishedpurposes of sentencing: rehabilitation, deterrence, and the protection of society by isolating theoffender (see People v Martinez, 26NY3d 196, 202 [2015, Pigott, J., dissenting]; People v Broadie, 37 NY2d 100, 112[1975], cert denied 423 US 950 [1975]; People v Raucci, 136 AD2d 48, 49[1988]). The paramount and overarching concern is the result upon society; that is, in whatmanner a particular sentence imposed upon an individual comports with the advancement of oursocietal goals. Here, I cannot find a societal benefit arising from the sentence imposed.Therefore, considering the gravity of the matter, and despite my recognition of our customarydeference to the sentencing court, I must dissent.
The underlying circumstances presented here are more tragic and compelling in nature thanthe tragedies of poor choices and criminality that we so often, too often, see with youngdefendants; in the initial sentencing proceeding, County Court described defendant'scircumstances as among "the saddest [the court had] ever heard of." At the time of these crimes,defendant was 18 years old and had been living alone, without adult support, guidance orsupervision, for two years. His mother left his family when he was three years old. He and hisbrother were thereafter raised by their father. His father died when defendant was 16. By allaccounts, before his father's death, defendant was on sound footing. He was a very capablestudent. He attended school regularly and got good grades; he had been accepted into awell-regarded college. He played tennis and was employed during vacations and after school in alocal children's summer camp and at a grocery store. He also worked—apparently as anintern or volunteer—in adult care facilities and a hospital, in preparation for a future careerin health care. He was well respected by teachers and peers. He had no record of any schooldiscipline issues, much less any issues involving criminal conduct of any nature.
After being orphaned, however, no adult relative or friend stepped forward to fill theresulting vacuum of parental guidance and support. There is no suggestion in the limited record[*3]that he was provided with any grief counseling services orother such support during the aftermath of this loss, to assist in coping with his bereavement.What the record does reveal is that thereafter he lived without any form of adult supervision orassistance in a house that he and his brother purchased with their father's life insurance benefits.It is evident—for reasons again unexplained and undeveloped in the record—that hehad a poor relationship with his brother. In the absence of any supportive family contacts, his lifeapparently spiraled out of control, and there was no one present to check his descent. He droppedout of school without graduating and began to abuse drugs and alcohol. In the midst of all of this,he also came to realize that he was gay. At some point before these crimes were committed, hebecame involved with his codefendants, who, as described by County Court, "targeted" defendantbecause of his sexual orientation, moved into his house and took advantage of him in a mannerthat, during the first sentencing, the court described as "to a certain extent victimiz[ation]."
Significantly, without in any manner minimizing the severity of defendant's crimes andparticularly the impact of these crimes upon the victims, it must be clearly noted that theyoccurred in a limited, two-week period of time. This crime spree occurred in the midst of whatcan only be understood as a major life crisis, in light of defendant's history and upon review ofthe surrounding circumstances. Entirely lacking is any suggestion of callous behavior ondefendant's part, or evil intent. Instead, the circumstances of this two-week period stronglysuggest a brief and terrible downward spiral, with terrible consequences. Following his arrest,defendant was fully cooperative with police and gave a confession that may have aided inimplicating his codefendants. Further, although defendant was not the ringleader, and hisparticipation was limited to driving while his codefendants actually committed the burglaries, hetook full responsibility for his role and acknowledged that the crimes might never have happenedif he had not facilitated them by providing transportation. His remorse was immediate andapparently genuine.
The factors to be taken into account in determining whether to grant youthful offender statusinclude "the gravity of the crime and manner in which it was committed, mitigatingcircumstances, defendant's prior criminal record, prior acts of violence, recommendations in thepresentence reports, defendant's reputation, the level of cooperation with authorities, defendant'sattitude toward society and respect for the law, and the prospects for rehabilitation and hope for afuture constructive life" (People v Cruickshank, 105 AD2d 325, 334 [1985], affd subnom. People v Dawn Maria C., 67 NY2d 625 [1986]; accord People v Ferguson, 285AD2d 901, 901-902 [2001], lv denied 96 NY2d 939 [2001]). Virtually all of these factorsfavor granting youthful offender status to defendant—his tragic background, the completelack of any prior violent or criminal acts whatsoever, and, in particular, the clear reasons forhope, based upon his blameless, successful life before the loss of his father and his remorsethereafter—that defendant has the potential to rehabilitate himself, complete his educationand build a more constructive life in the future. The significant exception is the gravity of thecrimes and their very serious impact upon the victims. Nevertheless, by making youthful offenderstatus available even to young defendants who commit such serious crimes as first degreemanslaughter, the Legislature manifested its intent "that this factor alone does not mandate denialof such treatment" (People v Cruickshank, 105 AD2d at 335).
Considering all of the circumstances, the sentencing goals of rehabilitation, deterrence andthe protection of society would be fully met by sentencing defendant to a shorter period ofincarceration consistent with youthful offender status (see People v Cannell, 178 AD2d853, 855-856 [1991], lv denied 79 NY2d 854 [1992]). It is doubtful that eight years inprison will facilitate his potential to be rehabilitated; on the contrary, we should acknowledge thesad likelihood that such a lengthy prison experience may instead operate to foreclose theopportunity [*4]that may have previously existed for him tobecome a contributing member of society. Nor will this harsh sentence serve to alleviate thedistress and pain suffered by the burglary victims; defendant's lengthy incarceration does notprotect them from the trauma they have suffered, and there is no credible indication in this recordthat defendant poses a future danger to other potential innocent victims.
Accordingly, and without finding that County Court abused its discretion in denying youthfuloffender treatment to defendant, I most strongly believe that in light of these exceptionalcircumstances, this Court should exercise its discretion (see People v Jeffrey VV., 88 AD3d 1159, 1160 [2011]; Peoplev Lyman HH., 215 AD2d 847, 848 [1995]; People v Cannell, 178 AD2d at 855-856;People v Andrea FF., 174 AD2d 865, 867 [1991]; People v Cruickshank, 105AD2d at 335-336) by vacating the convictions, adjudicating defendant to be a youthful offenderand, in the interest of judicial economy, sentencing him to a prison term of 1 to 4 years, ratherthan remitting for sentencing (see Penal Law §§ 60.02 [2]; 70.00 [2][e]; [3] [b]).
Ordered that the judgment is affirmed.