Opinion
2015-05-01
The PEOPLE of the State of New York, Respondent, v. Travis O. LEWIS, IV, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Cara A. Waldman of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Cara A. Waldman of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal 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] ), defendant contends, inter alia, that County Court abused its discretion in refusing to grant him youthful offender status. Initially, we note that, because “defendant was convicted of an armed felony, and was the sole participant in the crime, he could only be adjudicated a youthful offender if ‘mitigating circumstances' existed ‘that [bore] directly upon the manner in which the crime was committed’ ” (People v. Stokes, 28 A.D.3d 592, 592, 813 N.Y.S.2d 503, quoting CPL 720.10[3] ). Here, even assuming, arguendo, that the court credited defendant's statements that he possessed the illegal handgun to protect his younger brother who had received threats, and that such a rationale would qualify as mitigating circumstances to permit a youthful offender adjudication ( see generally People v. Amir W., 107 A.D.3d 1639, 1640–1641, 969 N.Y.S.2d 289), we conclude that the court did not abuse its discretion in refusing to grant defendant youthful offender status ( see People v. Mix, 111 A.D.3d 1417, 1418, 974 N.Y.S.2d 867). In addition, we decline to grant his request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender ( see People v. Facen, 67 A.D.3d 1478, 1479, 888 N.Y.S.2d 454, lv. denied14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938, reconsideration denied15 N.Y.3d 749, 906 N.Y.S.2d 822, 933 N.E.2d 221; cf. People v. Shrubsall, 167 A.D.2d 929, 930–931, 562 N.Y.S.2d 290). The record establishes that defendant had several prior arrests resulting in juvenile prosecutions and a previous youthful offender adjudication that replaced a misdemeanor conviction, upon which he had been sentenced to, inter alia, a term of probation ( see Mix, 111 A.D.3d at 1418, 974 N.Y.S.2d 867). In addition, he violated that probationary sentence by, among other things, committing this crime, and he also twice violated the term of interim probation that the court imposed between the time of the plea and sentencing ( see People v. Kocher, 116 A.D.3d 1301, 1301–1303, 984 N.Y.S.2d 244).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.