Opinion
570 KA 17-01724
07-28-2023
The PEOPLE of the State of New York, Respondent, v. James GRAHAM, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ). We previously held the case, reserved decision, and remitted the matter for County Court to make and state for the record a determination whether defendant should be afforded youthful offender status ( People v. Graham , 202 A.D.3d 1482, 1483, 158 N.Y.S.3d 908 [4th Dept. 2022] ; see generally People v. Rudolph , 21 N.Y.3d 497, 499-501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). Upon remittal, the court determined that defendant should not be afforded youthful offender status. We conclude that the court did not thereby abuse its discretion, particularly in view of the serious nature of the crime, in which defendant fired a gun several times into a crowd of people attending a candlelight vigil, striking and killing an innocent bystander (see generally People v. McCall , 187 A.D.3d 1682, 1683, 132 N.Y.S.3d 225 [4th Dept. 2020], lv denied 36 N.Y.3d 930, 135 N.Y.S.3d 343, 159 N.E.3d 1110 [2020] ; People v. Lester , 167 A.D.3d 1559, 1560, 91 N.Y.S.3d 643 [4th Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 219, 122 N.E.3d 1132 [2019]). In addition, upon our review of the record, we decline to exercise our discretion in the interest of justice to adjudicate defendant a youthful offender (see People v. Mohawk , 142 A.D.3d 1370, 1371, 38 N.Y.S.3d 469 [4th Dept. 2016] ; cf. People v. Thomas R.O. , 136 A.D.3d 1400, 1402-1403, 25 N.Y.S.3d 766 [4th Dept. 2016] ). We further conclude that the sentence imposed is not unduly harsh or severe.
Relying on a change in the law that occurred after the date of his conviction but before he perfected his appeal (see CPL 420.35 [2-a], as added by L 2020, ch 144, § 1 ), defendant asks this Court to waive the mandatory surcharge, crime victim assistance fee, and DNA databank fee based on the fact that he was under the age of 21 at the time of the offense. Even assuming, arguendo, that defendant can raise that request for the first time on appeal (see People v. Johnson , 195 A.D.3d 1510, 1513, 150 N.Y.S.3d 438 [4th Dept. 2021] ; cf. People v. Rice , 213 A.D.3d 1243, 1244, 182 N.Y.S.3d 453 [4th Dept. 2023], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 455, 209 N.E.3d 1280 [2023] ; see generally CPL 470.05 [2] ), we decline to waive those fees inasmuch as defendant has failed to establish any of the statutory grounds on which such fees could be waived (see CPL 420.35 [2-a] [a]-[c] ; People v. Attah , 203 A.D.3d 1063, 1064, 162 N.Y.S.3d 784 [2d Dept. 2022], lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 358, 188 N.E.3d 550 [2022] ; Johnson , 195 A.D.3d at 1513, 150 N.Y.S.3d 438 ).