| People v Williams |
| 2022 NY Slip Op 00697 [202 AD3d 1162] |
| February 3, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Deshawn Williams, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nichole M. Sands of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (Favreau, J.),rendered December 14, 2018, convicting defendant upon his plea of guilty of the crimes ofrobbery in the second degree and robbery in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count each of robbery in the second degree, grand larceny inthe fourth degree and robbery in the third degree. The charges stemmed from two separateincidents that occurred on the same day in December 2017. In the first incident, defendant placedwhat appeared to be a firearm to the victim's head and stole her purse, which contained money; inthe second incident, defendant forcibly stole the victim's handbag, which contained a credit card.In satisfaction of the superior court information, defendant pleaded guilty to robbery in thesecond degree and robbery in the third degree with the understanding that he would be sentencedto a prison term of eight years followed by five years of postrelease supervision upon hisconviction of robbery in the second degree and to a prison term of 2
Following various adjournments, the parties returned to County Court for sentencing, atwhich time the court considered defendant's eligibility for youthful offender treatment. Afterhearing from counsel, County Court concluded that defendant was not an eligible youth withinthe meaning of CPL 720.10 (3) and, in any event, that it would not have elected to adjudicatedefendant a youthful offender. As a result, County Court imposed the contemplated terms ofimprisonment, and this appeal ensued.
We affirm. Initially, we agree with defendant that his waiver of the right to appeal wasinvalid. The written waiver executed by defendant arguably was overbroad and, in any event,County Court "failed to ascertain whether defendant had read the waiver, understood it or hadample time to discuss it with counsel" (People v Gamble, 190 AD3d 1022, 1024 [2021], lv denied36 NY3d 1097 [2021]). The deficiencies in the written waiver were not cured by the court's terseoral colloquy with defendant, which, in our view, was "insufficient to permit the conclusion thatthe counseled defendant understood the distinction that some appellate review survived" (People v Deming, 190 AD3d1193, 1194 [2021] [internal quotation marks, brackets and citation omitted], lvdenied 36 NY3d 1119 [2021]; seePeople v Gervasio, 190 AD3d 1190, 1191 [2021]). Accordingly, neither defendant'schallenge to the severity of his sentence nor his claim that County Court abused its discretion infailing to adjudicate him a youthful offender is precluded (see generally People v Martz, 181 AD3d 979, 980-981 [2020],lv denied 35 NY3d 1047 [2020]; People v Wilson, 165 AD3d 1323, 1324[*2][2018]).
As to the merits, "[w]here, as here, a youth has been convicted of an armed felony offense, heor she is eligible to be found a youthful offender if the sentencing court determines that one ormore of the factors set forth in CPL 720.10 (3) are present—namely, whether there aremitigating circumstances that bear directly upon the manner in which the crime was committedor, if the defendant was not the sole participant in the crime, whether the defendant'sparticipation was relatively minor, although not so minor as to constitute a defense" (People v Jones, 182 AD3d 698,699 [2020] [internal quotation marks, brackets and citations omitted]; see People v Meridy, 196 AD3d 1,6-7 [2021], lv denied 37 NY3d 973 [2021]; People v Colon, 173 AD3d 1255, 1256 [2019]). "If the courtdetermines, in its discretion, that neither of the CPL 720.10 (3) factors exist[s] and states thereasons for that determination on the record, no further determination by the court is required"(People v Jones, 182 AD3d at 699 [internal quotation marks and citation omitted]).
Although defendant was not the sole participant in the robberies, his participation thereincannot be categorized as minor, as he was the one who placed what appeared to be a firearm tothe first victim's head and, in both instances, was the one who forcibly stole the subject property.With respect to mitigating circumstances, the case law makes clear that "traditional sentencingfactors, such as the [defendant's] age, background and criminal history, are not appropriate to themitigating circumstances analysis" (People v Jones, 166 AD3d 1479, 1480 [2018] [internal quotationmarks and citation omitted], lv denied 32 NY3d 1205 [2019]). Instead, the sentencingcourt "must rely only on factors related to the defendant's conduct in committing the crime, suchas a lack of injury to others or evidence that the defendant did not display a weapon during thecrime, or other factors that are directly related to the crime of which [the] defendant wasconvicted" (id. at 1480 [internal quotation marks and citations omitted]; accordPeople v Meridy, 196 AD3d at 7). Although there is no indication that the first victimsustained injuries as a result of the armed robbery, the record does not otherwise disclose anymitigating circumstances that bear directly upon the manner in which the crime was committed.Under these circumstances, County Court did not abuse its discretion in concluding thatdefendant was not an eligible youth within the meaning of CPL 720.10 (3) and, therefore, wasineligible for a youthful offender adjudication (see People v Lane, 192 AD3d 1262, 1263 [2021]; People vMartz, 181 AD3d at 981).
As a final matter, in light of "the nature of the crimes committed and the fact that defendantagreed to the sentence imposed as part of his negotiated plea agreement, we find no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interest ofjustice" (People v Martz, 181 AD3d at 981). Defendant's remaining contentions havebeen examined and found to be lacking in merit.
Garry, P.J., Aarons and Colangelo, JJ., concur. Ordered that the judgment is affirmed.