Opinion
846 KA 18–01873
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Handsome RICE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the surcharge and crime victim assistance fee and as modified the judgment is affirmed. Memorandum: On appeal from a judgment convicting him as a juvenile offender upon his plea of guilty of assault in the first degree ( Penal Law § 120.10[1] ), defendant contends that County Court failed to satisfy its obligation to determine whether he was eligible for youthful offender treatment (see generally People v. Middlebrooks, 25 N.Y.3d 516, 525–527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ; People v. Rudolph, 21 N.Y.3d 497, 499–501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). We reject defendant's contention. Where a court imposes sentence on a person who may be an eligible youth and who stands convicted of an armed felony, the court may, as it did here, "satisfy its obligation under Middlebrooks by declining to adjudicate the defendant a youthful offender after consideration on the record of factors pertinent to a determination whether an eligible youth should be adjudicated a youthful offender" ( 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] ; see People v. Macon, 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019] ). Contrary to defendant's further contention, even assuming, arguendo, that he was eligible to be adjudicated a youthful offender, we conclude that the court did not abuse its discretion in declining to grant defendant 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] ), and we decline to exercise our 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] ).
The sentence is not unduly harsh or severe. As the People correctly concede, however, the surcharge and crime victim assistance fee must be vacated because defendant is a juvenile offender (see Penal Law §§ 60.00[2] ; 60.10; People v. Antonio J., 173 A.D.3d 1743, 1744, 100 N.Y.S.3d 590 [4th Dept. 2019] ; People v. Stump, 100 A.D.3d 1457, 1458, 953 N.Y.S.2d 441 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). We therefore modify the judgment accordingly.
We have considered defendant's remaining contention and conclude that it does not require reversal or further modification of the judgment.