Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Michael D. AGEE, Defendant–Appellant.
Robert M. Graff, Lockport, for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
Robert M. Graff, Lockport, for Defendant–Appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, AND SCUDDER, JJ.
Memorandum: We previously held this case, reserved decision, and remitted the matter for County Court to make and state for the record a determination of whether defendant is a youthful offender (People v. Agee, 129 A.D.3d 1559, 1561, 13 N.Y.S.3d 713 ; see generally People v. Middlebrooks, 25 N.Y.3d 516, 525–527, 14 N.Y.S.3d 296, 35 N.E.3d 464 ; People v. Rudolph, 21 N.Y.3d 497, 499–501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Upon remittal, the court declined to grant defendant youthful offender treatment, stating that it was “not persuaded” of the existence of “any mitigating factor or factors” that would render defendant an eligible youth notwithstanding his conviction of armed felonies (see CPL 720.10[2][a][ii] ; [3] ). We conclude that the court did not thereby abuse its discretion (see generally Middlebrooks, 25 N.Y.3d at 526–527, 14 N.Y.S.3d 296, 35 N.E.3d 464 ). Defendant's participation in the crimes cannot be deemed “relatively minor” (CPL 720. 10[3][ii] ), and we conclude that the court properly determined that there are no “mitigating circumstances that bear directly upon the manner in which the [crimes were] committed” (CPL 720.10[3][i] ; see People v. Juliano, 128 A.D.3d 1521, 1522, 9 N.Y.S.3d 754, lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 ; People v. Smith, 118 A.D.3d 1492, 1493–1494, 988 N.Y.S.2d 819, lv. denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 ). In any event, even assuming, arguendo, that there is sufficient evidence of mitigating circumstances to render defendant eligible for youthful offender treatment, we nevertheless conclude, based on our review of the record and the factors relevant in making a youthful offender determination (see People v. Thomas R.O., 136 A.D.3d 1400, 1402, 25 N.Y.S.3d 766 ; see generally CPL 720.20[1][a] ), that the court's refusal to adjudicate defendant a youthful offender was not an abuse of discretion (see People v. Lewis, 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800, lv. denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 ), and we decline to exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v. Hall, 130 A.D.3d 1495, 1496, 11 N.Y.S.3d 498, lv. denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 ; cf. Thomas R.O. , 136 A.D.3d at 1403, 25 N.Y.S.3d 766).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.