Opinion
2011-10-27
The PEOPLE of the State of New York, Respondent,v.JEFFREY VV., Appellant.
Jerald Rosenthal, Hudson, for appellant.Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
Jerald Rosenthal, Hudson, for appellant.Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
KAVANAGH, J.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered May 11, 2010, convicting defendant upon his plea of guilty of the crime of possessing an obscene sexual performance by a child.
After defendant pleaded guilty to possessing an obscene sexual performance by a child, County Court denied his request for youthful offender treatment and sentenced him to six months in jail and 10 years of probation. Defendant now appeals, claiming that County Court erred in not adjudicating him a youthful offender.
The decision to grant or deny youthful offender status is left to the sound discretion of the sentencing court ( see People v. Clark, 84 A.D.3d 1647, 1647, 925 N.Y.S.2d 674 [2011]; People v. Driggs, 24 A.D.3d 888, 889, 804 N.Y.S.2d 703 [2005] ). The purpose sought to be served by conferring youthful offender treatment is to avoid “ ‘stigmatizing youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals' ” ( People v. Cruickshank, 105 A.D.2d 325, 333, 484 N.Y.S.2d 328 [1985], affd. sub nom. People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986], quoting
People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 350 N.E.2d 377 [1976]; see People v. Lyman HH., 215 A.D.2d 847, 848, 626 N.Y.S.2d 327 [1995] ). The factors to be considered in determining whether such an adjudication should be rendered are “the gravity of the crime and manner in which it was committed, mitigating circumstances, [the] defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, [the] defendant's reputation, the level of cooperation with authorities, [the] defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” ( People v. Cruickshank, 105 A.D.2d at 334, 484 N.Y.S.2d 328; see People v. Andrea FF., 174 A.D.2d 865, 867, 571 N.Y.S.2d 157 [1991] ).
Here, in denying youthful offender status, County Court was understandably concerned about the nature of defendant's offense—the possession of sexually explicit material involving underage individuals. However, we note that when sentence was imposed, defendant was 18 years of age, had no prior contact with law enforcement, and had been deemed by a psychologist not to pose a threat to the community and unlikely to commit the same or a similar offense in the future. This psychological evaluation, based on a detailed examination of defendant performed prior to sentencing, revealed that he was sexually interested in males of his own age and had a normal understanding of appropriate sexual behavior. It also noted that defendant was participating in counseling and could become a productive member of society if he continued counseling and received vocational training. Given this background and defendant's willingness to accept full responsibility for his conduct, we choose to exercise our discretion ( see People v. Lyman HH., 215 A.D.2d at 848, 626 N.Y.S.2d 327; People v. Andrea FF., 174 A.D.2d at 867, 571 N.Y.S.2d 157; People v. Cruickshank, 105 A.D.2d at 337, 484 N.Y.S.2d 328) by vacating the conviction and adjudicating defendant a youthful offender.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, conviction vacated, defendant is declared to be a youthful offender, and matter remitted to the County Court of Columbia County for resentencing.
MERCURE, J.P., SPAIN, MALONE JR. and McCARTHY, JJ., concur.