Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Jose J. STITT, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10 [2 ] [b] ) and robbery in the third degree (§ 160.05 ). We reject defendant's contention that Supreme Court erred in failing to consider adequately his eligibility 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 ; People v. Rudolph, 21 N.Y.3d 497, 499–501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). At sentencing, the court denied defendant's request for youthful offender treatment, and attributed the denial to the seriousness of the crimes, defendant's prior legal history, and defendant's failure to take responsibility for his actions. The court's remarks establish that it “made an independent determination” whether to adjudicate defendant a youthful offender (People v. Richardson, 128 A.D.3d 988, 989, 10 N.Y.S.3d 264, lv. denied 25 N.Y.3d 1206, 16 N.Y.S.3d 528, 37 N.E.3d 1171 ; see
People v. Fate, 117 A.D.3d 1327, 1329, 986 N.Y.S.2d 672, lv. denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 ; see generally People v. Jackson, 119 A.D.3d 1361, 1361–1362, 988 N.Y.S.2d 510, lv. denied 23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 ), and that it did not deny defendant's request merely because defendant had been convicted of an armed felony (cf. Middlebrooks, 25 N.Y.3d at 525–526, 14 N.Y.S.3d 296, 35 N.E.3d 464 ), or in deference to the plea agreement (cf. Rudolph, 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; People v. Potter, 114 A.D.3d 1183, 1184, 980 N.Y.S.2d 194 ).
We recognize that the court did not explicitly address the threshold issue whether defendant was an eligible youth notwithstanding his conviction of an armed felony (see CPL 720.10[2][a][ii] ; [3] ), and that, in general, a court sentencing a defendant whose only barrier to youthful offender eligibility is his or her conviction of an armed felony “is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) ” (Middlebrooks, 25 N.Y.3d at 527, 14 N.Y.S.3d 296, 35 N.E.3d 464 ). In our view, however, a court in an armed felony case can 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 (see id. at 527, 14 N.Y.S.3d 296, 35 N.E.3d 464 ; People v. Thomas R.O., 136 A.D.3d 1400, 1402, 25 N.Y.S.3d 766 ), thereby demonstrating that it implicitly resolved the threshold issue of eligibility in the defendant's favor (cf. People v. Lowe, 25 N.Y.3d 516, 521 n. 1, 14 N.Y.S.3d 296, 35 N.E.3d 464 ), or assumed, arguendo, that the defendant was an eligible youth (see e.g. People v. Lewis, 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800, lv. denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 ). We therefore conclude that the record here “belies defendant's contention that the court [erred in failing] to determine whether he was eligible for youthful offender status” (People v. Michael A.C. [Appeal No. 2], 128 A.D.3d 1359, 1360, 7 N.Y.S.3d 777, lv. denied 25 N.Y.3d 1168, ––– N.Y.S.3d ––––, –––N.E.3d ––– –; cf. People v. Melendez, 132 A.D.3d 471, 471, 17 N.Y.S.3d 410 ). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.