| People v Keith B.J. |
| 2018 NY Slip Op 00734 [158 AD3d 1160] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Keith B.J., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedApril 14, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice, the conviction is vacated, defendant is adjudicated ayouthful offender, and the matter is remitted to Monroe County Court for sentencing.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that the County Court erred in denying his request to be adjudicated a youthfuloffender.
Initially, we agree with defendant that the court did not explicitly address the threshold issuewhether defendant was an eligible youth despite his conviction of an armed felony (seeCPL 720.10 [2] [a] [ii]; [3]). We conclude, however, that the court implicitly resolved thethreshold issue of eligibility in defendant's favor (see People v Stitt, 140 AD3d 1783, 1784 [4th Dept 2016], lvdenied 28 NY3d 937 [2016]), and that the court properly did so because, under the facts ofthis case, there are sufficient "mitigating circumstances" to render defendant eligible for youthfuloffender treatment (see CPL 720.10 [3] [i], [ii]; People v Glen W., 89 AD2d 883,883 [2d Dept 1982]).
We also agree with defendant that he should be afforded youthful offender status. Indetermining whether to afford such treatment to a defendant, a court must consider "the gravityof the crime and manner in which it was committed, mitigating circumstances, defendant's priorcriminal record, prior acts of violence, recommendations in the presentence reports, defendant'sreputation, the level of cooperation with authorities, defendant's attitude toward society andrespect for the law, and the prospects for rehabilitation and hope for a future constructive life"(People v Cruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd 67 NY2d 625[1986]; see People v Shrubsall, 167 AD2d 929, 930 [4th Dept 1990]). Here, the onlyfactor weighing against affording defendant youthful offender treatment is the seriousness of thecrime (see Shrubsall, 167 AD2d at 930; Cruickshank, 105 AD2d at 335).Defendant was 17 years old at the time of the crime and had no prior criminal record or history ofviolence. Defendant has accepted responsibility for his actions and expressed genuine remorse.The presentence report recommended youthful offender treatment, and the record establishes thatdefendant has the capacity for a productive and law-abiding future.
Although we do not conclude, after weighing the appropriate factors, that the court abused itsdiscretion in denying defendant youthful offender status, we nevertheless choose to exercise ourdiscretion in the interest of justice by reversing the judgment, vacating the [*2]conviction, and adjudicating defendant a youthful offender, and weremit the matter to County Court for sentencing on the adjudication (see Cruickshank,105 AD2d at 335). Present—Smith, J.P., Carni, Lindley, Curran and Troutman, JJ.