Opinion
112292
11-10-2021
The PEOPLE of the State of New York, Respondent, v. Julian A. VANLEUVAN, Appellant.
O'Connell and Aronowitz, Albany (Scott W. Iseman of counsel), for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
O'Connell and Aronowitz, Albany (Scott W. Iseman of counsel), for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Washington County (Michelini, J.), rendered December 6, 2019, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the first degree.
Following an incident in which the 15–year–old defendant allegedly subjected a physically helpless victim to anal sexual contact, he was charged in an indictment with criminal sexual act in the first degree. He pleaded guilty as charged and waived his right to appeal upon the understanding that he would be sentenced to a term of incarceration for a period of 1 to 5 years in the custody of the Office of Children and Family Services. County Court thereafter determined that defendant was not eligible for youthful offender treatment and imposed the promised sentence. Defendant appeals.
We affirm. Defendant argues that County Court abused its discretion in denying his application for youthful offender status and, at the outset, the record reflects that the parties understood this issue to be excluded from the scope of his unchallenged appeal waiver (see People v. Driggs, 24 A.D.3d 888, 889 n., 804 N.Y.S.2d 703 [2005] ; cf. People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Smith, 34 A.D.3d 1127, 1127, 824 N.Y.S.2d 504 [2006] ). Nevertheless, as defendant was convicted of "criminal sexual act in the first degree[ ] and was the sole perpetrator of [said] crime[ ], he was required to demonstrate mitigating circumstances that bear directly upon the manner in which the crime was committed in order to be eligible for" youthful offender status ( People v. Lane, 192 A.D.3d 1262, 1263, 143 N.Y.S.3d 455 [2021] [internal quotation marks and citations omitted]; see CPL 720.10[2][a] ; [3][i]; People v. Wilson, 181 A.D.3d 1318, 1318–1319, 121 N.Y.S.3d 486 [2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 508, 158 N.E.3d 525 [2020] ; People v. Robertucci, 172 A.D.3d 1782, 1782–1783, 101 N.Y.S.3d 751 [2019] ). County Court rejected defendant's arguments regarding the presence of mitigating circumstances. Even assuming that defendant preserved for review his argument that his alcohol and drug intoxication at the time of the offense constituted such a circumstance, that assertion is unpersuasive. Although his intoxication may have been a factor in defendant's decision to commit the crime, it did not "bear directly on [his] personal conduct in committing the crime" so as to constitute a mitigating circumstance ( People v. Garcia, 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994] ; see CPL 720.10[3][i] ; People v. Victor J., 283 A.D.2d 205, 206–207, 724 N.Y.S.2d 162 [2001], lv denied 96 N.Y.2d 942, 733 N.Y.S.2d 383, 759 N.E.2d 382 [2001] ). Thus, defendant did not establish the existence of mitigating circumstances that would render him eligible for youthful offender consideration, and County Court properly determined as much (see People v. Victor J., 283 A.D.2d at 206–207, 724 N.Y.S.2d 162 ).
Finally, to the extent that the issue was excluded from the scope of his appeal waiver (cf. People v. Clark, 135 A.D.3d 1239, 1240, 23 N.Y.S.3d 481 [2016], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ), his contention that this Court should exercise its interest of justice jurisdiction to grant him youthful offender status is academic given his ineligibility for that status.
Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.