Opinion
2018–05391 Ind. No. 2231/16
12-04-2019
The PEOPLE, etc., Respondent, v. Dionte CHERRY, Appellant.
Paul Skip Laisure, New York, N.Y. (Patricia Pazner of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Marielle Burnett on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Patricia Pazner of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Marielle Burnett on the brief), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin Murphy, J.), rendered February 8, 2018, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant, who argued at sentencing that he should be afforded youthful offender treatment, preserved for appellate review his argument that he should have been afforded such treatment (see CPL 470.05[2] ; People v. Morse , 144 A.D.3d 710, 39 N.Y.S.3d 836 ; People v. David S. , 78 A.D.3d 1205, 911 N.Y.S.2d 647 ; People v. Gomez , 60 A.D.3d 782, 874 N.Y.S.2d 582 ). However, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying him youthful offender treatment. As the defendant was convicted of an armed felony (see CPL 1.20[41] ), he was eligible to have this conviction replaced with a youthful offender adjudication only if there were "mitigating circumstances that [bore] directly upon the manner in which the crime was committed," or if his participation in the crime was "relatively minor" ( CPL 720.10[3] ). Mitigating circumstances include "[f]actors ‘directly’ flowing from and relating to [the] defendant's personal conduct while committing the crime," but generally, do not include the "defendant's age, background, criminal history and drug habit" ( People v. Garcia , 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 ; see People v. D.M. , 168 A.D.3d 879, 880, 89 N.Y.S.3d 906 ). Here, considering the defendant's conduct, which included pointing a firearm at an individual and stealing money from him, there are insufficient mitigating circumstances bearing directly upon the manner in which the crime was committed (see People v. Rosado , 173 A.D.3d 776, 777, 99 N.Y.S.3d 702 ; People v. D.M. , 168 A.D.3d at 880, 89 N.Y.S.3d 906 ; People v. Keith , 144 A.D.3d 705, 706, 39 N.Y.S.3d 808 ; People v. Henry , 76 A.D.3d 1031, 907 N.Y.S.2d 685 ). Moreover, although the defendant was not the sole participant in the crime, the defendant's participation cannot be described as relatively minor (see People v. D.M. , 168 A.D.3d at 880, 89 N.Y.S.3d 906 ; People v. Mackson, 154 A.D.3d 780, 781, 61 N.Y.S.3d 508 ; People v. Keith , 144 A.D.3d at 706, 39 N.Y.S.3d 808 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., COHEN, MILLER and IANNACCI, JJ., concur.