| People v Sheldon O. |
| 2019 NY Slip Op 01430 [169 AD3d 1062] |
| February 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sheldon O., Appellant. |
Paul Skip Laisure, New York, NY (David L. Goodwin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, and Anne C.Greenberg of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph E.Gubbay, J.), rendered May 5, 2016, convicting him of robbery in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, theconviction is deemed vacated and replaced with a finding that the defendant is a youthful offender(see CPL 720.20 [3]), the sentence is vacated, and the matter is remitted to the SupremeCourt, Kings County, for the imposition of sentence pursuant to Penal Law § 60.02 andfor further proceedings in accordance with CPL 720.35.
As the People correctly concede, the defendant's purported waiver of his right to appeal wasinvalid (see People v Payne, 164 AD3d699 [2018]; People v Hong Mo Lin,163 AD3d 849 [2018]; People vGuarchaj, 122 AD3d 878 [2014]) and, thus, does not preclude review of his claim that heshould have been afforded youthful offender treatment.
A finding of youthful offender status is permissible when "the interest of justice would be served byrelieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate termof imprisonment of more than four years" (CPL 720.20 [1] [a]). " 'The determination ofwhether to grant or deny youthful offender status rests within the sound discretion of the court anddepends upon all the attending facts and circumstances of the case' " (People v McEachern, 163 AD3d 850,851 [2018], quoting People v Hesterbey,121 AD3d 1127, 1128 [2014]). In making such a determination, factors to be considered by thecourt include "the gravity of the crime and manner in which it was committed, mitigating circumstances,defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports,defendant's reputation, 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 [1985], affd sub nom. People v Dawn MariaC., 67 NY2d 625 [1986]).
Here, the Supreme Court's determination to deny the defendant youthful offender status was animprovident exercise of discretion (see Peoplev Darius B., 145 AD3d 793 [2016]; People v Cruickshank, 105 AD2d 325 [1985]).The evidence demonstrated that the defendant, who was only 18 years old when he participated in thesubject robbery and had spent nearly two years in pretrial detention prior to pleading guilty to robberyin the first degree, played a relatively minor role in the robbery, which, although serious, wasorchestrated by his considerably older brother, who was a repeat offender. The defendant suffers fromdevelopmental delays. While the defendant did participate in the robbery, it was the defendant'sbrother, not the defendant, who wielded a gun and committed a sexual assault against one of thevictims. Additional mitigating circumstances include the defendant's lack of a prior juvenile record,criminal record, or violent history, and his cooperation with the authorities as part of the plea deal.Moreover, the defendant either had graduated from high school or was on the cusp of graduating fromhigh school. Under all the circumstances, the interest of justice would be served by "relieving thedefendant from the onus of a criminal record" (People v Darius B., 145 AD3d at 794;see CPL 720.20 [1] [a]).
In light of our determination, we need not reach the defendant's remaining contention. Austin, J.P.,Hinds-Radix, Maltese and Christopher, JJ., concur.