| People v Lindsey |
| 2018 NY Slip Op 07860 [166 AD3d 1565] |
| November 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Marquan Lindsey, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Brittney Clark of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kaitlyn M. Guptill of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Walter W. Hafner, Jr.,A.J.), rendered March 22, 2016. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree and criminal possessionof stolen property in the fourth 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, inter alia, criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). At sentencing, defendant sought youthful offender status.Because defendant was convicted of an armed felony (see CPL 1.20 [41] [a]; People v Quinones, 140 AD3d1693, 1693-1694 [4th Dept 2016], lv denied 28 NY3d 935 [2016]), he wasineligible for youthful offender status unless, insofar as relevant here, the court"determine[d] that there are mitigating circumstances bearing directly upon the manner inwhich the crime was committed" (People v Middlebrooks, 25 NY3d 516, 519 [2015];see CPL 720.10 [2] [a] [ii]; [3] [i]). County Court initially determined thatdefendant was ineligible for youthful offender status because there were no suchmitigating circumstances in this case. The court further determined, in the alternative,that defendant should not be granted youthful offender status even had he beeneligible.
Initially, we agree with defendant that the court erred in determining that he wasineligible for youthful offender status. Although it is well established that a defendant'slack of criminal record is not a qualifying mitigating circumstance (see People vGarcia, 84 NY2d 336, 342 [1994]; People v Victor J., 283 AD2d 205, 206[1st Dept 2001], lv denied 96 NY2d 942 [2001]), it is equally well establishedthat "lack of injury to others and nondisplay of a weapon [constitute] qualifyingmitigating circumstances" (Garcia, 84 NY2d at 342; see People v Marquis A., 145AD3d 61, 68-69 [3d Dept 2016]). Here, it is undisputed that defendant did not useor display the gun at issue, nor did its possession result in injury to others. Thus, there are"mitigating circumstances bearing directly upon the manner in which the crime wascommitted" (Middlebrooks, 25 NY3d at 519; see CPL 720.10 [3] [i]), andit follows that defendant is eligible for youthful offender status (see Marquis A.,145 AD3d at 68-69).
Notwithstanding defendant's eligibility for youthful offender status, however, weagree with the court that, considering the "broad range of factors pertinent to anyyouthful offender determination" (Middlebrooks, 25 NY3d at 527; see Peoplev Cruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd 67 NY2d 625[1986]), defendant should not be afforded youthful offender status under thecircumstances of this case. We therefore affirm the judgment on the alternative groundarticulated by the court at sentencing (see generally People v Nicholson, 26 NY3d 813, 825-826[2016]; People vConcepcion, 17 NY3d 192, 197-198 [2011]).
Defendant's remaining contention is unpreserved for our review (see People v Russell, 133AD3d 1199, 1200 [4th Dept 2015], lv denied 26 NY3d 1149 [2016]), andwe decline to review it as a matter of discretion in the interest of justice (see generallyCPL 470.15 [3] [c]). Finally, we note that the uniform sentence and commitmentsheet incorrectly indicates that defendant was "re-sentenced as a probation violator," andit must therefore be amended by striking that notation. Present—Centra, J.P.,Lindley, DeJoseph, NeMoyer and Winslow, JJ.