Opinion
2014–10102 Ind.No. 250/13
01-16-2019
The PEOPLE, etc., Respondent, v. D.M. (Anonymous), Appellant.
Janet E. Sabel, New York, N.Y. (Laura Boyd of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel; Robert Ho on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Laura Boyd of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel; Robert Ho on the memorandum), for respondent.
REINALDO E. RIVERA, J.P. SANDRA L. SGROI SYLVIA O. HINDS–RADIX VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The Supreme Court did not improvidently exercise its discretion in declining to adjudicate the defendant a youthful offender. Since the defendant was convicted of armed felonies (see CPL 1.20[41] ), he was eligible to have those convictions 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, since the defendant was not the sole participant in the crimes, if his participation was "relatively minor" ( CPL 720.10[3] ; see CPL 720.10[2][a] ; People v. Mackson, 154 A.D.3d 780, 781, 61 N.Y.S.3d 508 ). The phrase "mitigating circumstances that bear directly upon the manner in which the crime was committed," connotes "[f]actors ‘directly’ flowing from and relating to defendant's personal conduct while committing the crime," and generally does not include a "defendant's age, background [and] criminal history" ( People v. Garcia, 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 ). Here, examining the defendant's personal conduct, which included, on one occasion, pointing what appeared to be a firearm at an individual and taking his property and, on another occasion, taking property from another individual while a codefendant pointed what appeared to be a firearm, there are insufficient mitigating circumstances bearing directly upon the manner in which the crimes were committed (see People v. Henry, 76 A.D.3d 1031, 907 N.Y.S.2d 685 ; see also People v. Keith, 144 A.D.3d 705, 706, 39 N.Y.S.3d 808 ). Moreover, although the defendant was not the sole participant in the crimes, the defendant's participation cannot be described as relatively minor (see People v. Mackson, 154 A.D.3d at 781, 61 N.Y.S.3d 508 ; People v. Keith, 144 A.D.3d at 706, 39 N.Y.S.3d 808 ). Accordingly, we affirm the judgment.
RIVERA, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.