Opinion
1399 KA 15–00813
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Davon S. MACON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN, SPECIAL ASSISTANT, OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN, SPECIAL ASSISTANT, OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ), and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), defendant contends that County Court abused its discretion in refusing to grant him youthful offender status. Initially, we note that the court did not explicitly address the threshold issue whether defendant was an eligible youth despite his conviction of an armed felony (see CPL 720.10[2][a][ii] ; [3] ). We conclude, however, that the court implicitly resolved the threshold issue of eligibility in defendant's favor (see People v. Stitt , 140 A.D.3d 1783, 1784, 33 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016] ). Here, even assuming, arguendo, that defendant was eligible for youthful offender status, we conclude that the court did not abuse its discretion in refusing to grant him that status (see People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ). In addition, we perceive no basis for exercising our own discretion in the interest of justice to adjudicate defendant a youthful offender (see id. at 1400–1401, 7 N.Y.S.3d 800 ; cf. People v. Amir W. , 107 A.D.3d 1639, 1640–1641, 969 N.Y.S.2d 289 [4th Dept. 2013] ), or to reduce the sentence (see CPL 470.15[6][b] ). Contrary to defendant's contention, the agreed-upon sentence is not unduly harsh or severe.