Opinion
679 KA 20-01053
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Samuel R. BLACKSHEAR, Also Known as Samuel Blackshear, Defendant-Appellant.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (ANDREW J. DIPASQUALE OF COUNSEL), FOR RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (ANDREW J. DIPASQUALE OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that County Court erred in determining that he was not eligible for youthful offender treatment because his conviction was for an armed felony offense (see CPL 1.20 [41] ; 720.10 [2] [a] [ii]) and none of the statutory mitigating factors was present (see CPL 720.10 [3] ). As an initial matter, as the People correctly concede, defendant's waiver of the right to appeal is invalid " ‘because [it] encompassed post-conviction motions’ " ( People v. Grabowski , 200 A.D.3d 1718, 1718, 155 N.Y.S.3d 866 [4th Dept. 2021] ).
On the merits, defendant does not dispute that he was convicted of an armed felony offense (see CPL 1.20 [41] ), but contends that the court should have determined him to be eligible for youthful offender treatment because there were "mitigating circumstances that bear directly upon the manner in which the crime was committed" ( CPL 720.10 [3] [i] ). We conclude that the court did not abuse its discretion in denying youthful offender treatment upon its finding that no such mitigating circumstances existed (see generally People v. Dukes , 156 A.D.3d 1443, 1443, 65 N.Y.S.3d 828 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ). Contrary to defendant's contention, the record does not reflect that defendant merely possessed the subject handgun in order to defend others. Rather, the record establishes that defendant possessed the handgun while engaging in an act of retaliation, during which he pursued his target in order to fire the gun at that person at close range (see generally People v. Jones , 166 A.D.3d 1479, 1480, 88 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019] ). After the court determined, in its discretion, that none of the mitigating factors set forth in CPL 720.10 (3) was present and stated the reasons for that determination on the record, "no further determination [with respect to youthful offender treatment was] required" ( People v. Gonzalez , 171 A.D.3d 1502, 1503, 99 N.Y.S.3d 546 [4th Dept. 2019] ).