Opinion
258 KA 22-00587
03-17-2023
The PEOPLE of the State of New York, Respondent, v. Zachary MARSHALL, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (AUSTIN MILONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (AUSTIN MILONE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). The conviction arose from an incident in which defendant, after being handed a semiautomatic handgun by a companion who was engaged in a verbal argument with another person while that person's friend (victim) attempted to quell the situation, approached from behind and fatally shot the victim six times in the back. We affirm.
As an initial matter, defendant correctly contends and the People correctly concede that defendant did not validly waive his right to appeal. County Court "conflated the appeal waiver with the rights automatically waived by the guilty plea ... and thus the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Murray , 197 A.D.3d 1017, 1017, 152 N.Y.S.3d 761 [4th Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 342, 180 N.E.3d 506 [2021] [internal quotation marks omitted]; see People v. Jones , 211 A.D.3d 1489, 1490, 180 N.Y.S.3d 412 [4th Dept. 2022] ; People v. Rodriguez , 199 A.D.3d 1458, 1458, 154 N.Y.S.3d 609 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 712, 181 N.E.3d 1140 [2022] ). The court also " ‘mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues’ " ( Murray , 197 A.D.3d at 1017, 152 N.Y.S.3d 761 ; see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; Jones , 211 A.D.3d at 1490, 180 N.Y.S.3d 412 ; Rodriguez , 199 A.D.3d at 1458, 154 N.Y.S.3d 609 ).
Defendant contends that the court erred in refusing to adjudicate him a youthful offender. We reject that contention. Where, as here, a defendant is convicted of an armed felony (see CPL 1.20 [41] ; People v. Meridy , 196 A.D.3d 1, 3-6, 147 N.Y.S.3d 287 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ), he or she may be adjudicated a youthful offender only where he or she was not the sole participant in the crime and his or her participation was relatively minor (see CPL 720.10 [3] [ii] ), or where there are "mitigating circumstances that bear directly upon the manner in which the crime was committed" ( CPL 720.10 [3] [i] ), i.e., circumstances that "bear directly on defendant's personal conduct in committing the crime" ( People v. Garcia , 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994] ; see People v. Jones , 166 A.D.3d 1479, 1480, 88 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019]). "Factors ‘directly’ flowing from and relating to defendant's personal conduct while committing the crime qualify" as appropriate mitigating circumstances in this context; however, "generally, defendant's age, background, criminal history and drug habit do not pertain to defendant's direct manner in the commission of the crime" ( Garcia , 84 N.Y.2d at 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 ; see Meridy , 196 A.D.3d at 7, 147 N.Y.S.3d 287 ; Jones , 166 A.D.3d at 1480, 88 N.Y.S.3d 318 ). Here, we conclude that the court did not abuse its discretion in determining that defendant was not eligible for youthful offender status inasmuch as it is undisputed that defendant's participation in the crime was not relatively minor (see CPL 720.10 [3] [ii] ) and, contrary to defendant's contention, the record does not establish the existence of any "mitigating circumstances that bear directly upon the manner in which the crime was committed" ( CPL 720.10 [3] [i] ; see People v. Blackshear , 208 A.D.3d 1635, 1636, 174 N.Y.S.3d 657 [4th Dept. 2022], lv denied 39 N.Y.3d 961, 179 N.Y.S.3d 156, 200 N.E.3d 101 [2022] ; People v. Flores , 134 A.D.3d 425, 426, 19 N.Y.S.3d 524 [1st Dept. 2015], lv denied 29 N.Y.3d 948, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] ; People v. Victor J. , 283 A.D.2d 205, 206-207, 724 N.Y.S.2d 162 [1st Dept. 2001], lv denied 96 N.Y.2d 942, 733 N.Y.S.2d 383, 759 N.E.2d 382 [2001] ; cf. People v. John B. , 93 A.D.2d 957, 957, 463 N.Y.S.2d 275 [3d Dept. 1983] ). Further, even assuming, arguendo, that there were sufficient mitigating circumstances here, based on our review of the relevant factors to consider in determining whether to afford defendant youthful offender treatment (see People v. Cruickshank , 105 A.D.2d 325, 334, 484 N.Y.S.2d 328 [3d Dept. 1985], affd 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ; People v. Shrubsall , 167 A.D.2d 929, 930, 562 N.Y.S.2d 290 [4th Dept. 1990] ), we conclude that the court's refusal to adjudicate him a youthful offender was not an abuse of discretion, and we decline to exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see Meridy , 196 A.D.3d at 7-8, 147 N.Y.S.3d 287 ; People v. Agee , 140 A.D.3d 1704, 1705, 34 N.Y.S.3d 554 [4th Dept. 2016], lv denied 28 N.Y.3d 925, 40 N.Y.S.3d 354, 63 N.E.3d 74 [2016] ).
Finally, we conclude that the sentence is not unduly harsh or severe.