| People v Nicholas G. |
| 2020 NY Slip Op 01828 [181 AD3d 1273] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Nicholas G., Appellant. |
Andrew D. Correia, Public Defender, Lyons (Bridget L. Field of counsel), fordefendant-appellant.
Michael D. Calarco, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Richard M. Healy, J.),rendered March 21, 2018. The judgment convicted defendant, upon a plea of guilty, ofsexual abuse in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed as amatter of discretion in the interest of justice, the conviction is vacated, and defendant isadjudicated a youthful offender and sentenced in accordance with the followingmemorandum: On appeal from a judgment convicting him, upon his plea of guilty, oftwo counts of sexual abuse in the first degree (Penal Law § 130.65 [3]),defendant argues that he should be afforded youthful offender status. In determiningwhether to afford youthful offender status to an eligible youth such as defendant, a courtmust consider "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 ofcooperation with authorities, defendant's attitude toward society and respect for the law,and the prospects for rehabilitation and hope for a future constructive life" (People vCruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd 67 NY2d 625[1986]). "[T]he Appellate Division may exercise its interest of justice jurisdiction toadjudicate a defendant a youthful offender even if it does not conclude that the trial courtabused its discretion in denying youthful offender treatment" (People v Shrubsall,167 AD2d 929, 930 [4th Dept 1990]).
Here, defendant was 17 years old at the time of the crimes and had no prior criminalrecord, history of violence, or history of sex offending. Moreover, defendant hassubstantial cognitive limitations, learning disabilities, and other mental health issues, andhe has accepted responsibility for his actions and expressed genuine remorse. Both theProbation Department and the reviewing psychologist recommended youthful offendertreatment, and the record suggests that defendant might have the capacity for aproductive and law-abiding future. The only factor weighing against affording defendantyouthful offender treatment is the seriousness of the crimes.
On balance, although County Court did not abuse its discretion in denying defendantyouthful offender status, we will exercise our discretion in the interest of justice toreverse the judgment, vacate the conviction, and adjudicate defendant a youthfuloffender (see People v KeithB.J., 158 AD3d 1160, 1160-1161 [4th Dept 2018]). We impose the samesentence on the adjudication that was previously imposed on the conviction, i.e., adefinite term of six months' imprisonment that shall be a condition of and runconcurrently with a 10-year term of probation (see CPL 720.20 [3]; Penal Law§§ 60.01 [2] [d]; 60.02 [2]; 60.13, 65.00 [3] [a] [iii]; 70.80 [1] [a]; [4][b], [c]). All conditions of probation shall remain in effect. Present—Smith, J.P.,NeMoyer, Troutman and Bannister, JJ.