Opinion
Nos. 2018-11582 2018-11583 (Ind. Nos. 3551/17 7897/17)
11-30-2022
The People of the State of New York, respondent, v. Brendon. (Anonymous), appellant.
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Daniel Berman of counsel), for respondent.
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Daniel Berman of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered July 16, 2018, convicting him of assault in the second degree under Indictment No. 3551/17, upon his plea of guilty, and imposing sentence, and (2) a judgment of the same court, also rendered July 16, 2018, adjudicating him a youthful offender, upon his plea of guilty to petit larceny under Indictment No. 7897/17, and imposing sentence.
ORDERED that the judgment rendered under Indictment No. 3551/17 is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge, DNA databank fee, and crime victim assistance fee; as so modified, the judgment rendered under Indictment No. 3551/17 is affirmed; and it is further, ORDERED that the judgment rendered under Indictment No. 7897/17 is modified, on the law, by vacating the imposition of a mandatory surcharge and crime victim assistance fee; as so modified, the judgment rendered under Indictment No. 7897/17 is affirmed.
The defendant entered pleas of guilty to assault in the second degree under Indictment No. 3551/17, and to petit larceny under Indictment No. 7897/17. At sentencing, the defendant requested youthful offender treatment with respect to both convictions. The Supreme Court granted the defendant youthful offender status in connection with Indictment No. 7897/17, but declined to do so with respect to Indictment No. 3551/17.
"If in the opinion of the court the interest of justice would be served by relieving [an] eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender" (CPL 720.20[1][a]). "In making such a determination, factors to be considered by the court 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 and respect for the law, and the prospects for rehabilitation and hope for a future constructive life'" (People v Marcel G., 183 A.D.3d 667, 668, quoting People v Cruickshank, 105 A.D.2d 325, 334, affd sub nom. People v Dawn Maria C., 67 N.Y.2d 625; see People v Sutton, 184 A.D.3d 236, 246).
Here, despite the defendant's lack of a prior criminal record and the apparent rehabilitative strides he made while incarcerated, the Supreme Court providently exercised its discretion in declining to grant the defendant youthful offender status with respect to Indictment No. 3551/17 in light of the nature and circumstances of the offense, which resulted in severe long-term injuries to the complainant (see People v Battle, ___ A.D.3d ___, 2022 NY Slip Op 05702 [2d Dept]; People v Beyjones, 186 A.D.3d 848, 849; People v Jearel, 175 A.D.3d 565, 566-567; People v Dhillon, 157 A.D.3d 900, 901), and in light of the defendant's subsequent arrest and concurrent conviction for petit larceny under Indictment No. 7897/17 (see People v Bensabeur, 194 A.D.3d 736, 736; People v Booker, 111 A.D.3d 759, 760).
However, as consented to by the People, and pursuant to the exercise of our interest of justice jurisdiction, we modify the judgment rendered under Indictment No. 3551/17 by vacating the imposition of the mandatory surcharge and fees (see CPL 420.35[2-a][c]; People v Hunter, 203 A.D.3d 752, 753; People v Santillan, 200 A.D.3d 1074, 1075; People v Rudd, 200 A.D.3d 912; People v Dyshawn B., 196 A.D.3d 638).
Moreover, since the Supreme Court granted the defendant youthful offender status in connection with Indictment No. 7897/17, the mandatory surcharge and crime victim assistance fee imposed upon the defendant (see Penal Law § 60.35[1]) under Indictment No. 7897/17 must be vacated in light of the retroactive application of amendments repealing the imposition of mandatory surcharges and crime victim assistance fees for youthful offenders (see L 2020, ch 144, §§ 3, 4; People v Kahrone H., 204 A.D.3d 693, 694; People v Dyshawn B., 203 A.D.3d 739, 739; People v Dyshawn B., 196 A.D.3d at 641).
DILLON, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.