Opinion
KA 04-02978.
February 3, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered September 29, 2004. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-MC LAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Pigott, Jr., P.J., Hurlbutt, Gorski and Smith, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05), defendant contends that he should have been afforded youthful offender status. We agree. Defendant was 16 years old at the time of the assault and had no prior criminal record. In addition, it appears from the record that the assault was precipitated by some racial name-calling by the victims and that defendant's older sisters were the primary perpetrators of the assault. We conclude that despite a difficult upbringing, defendant has the potential to lead a law-abiding life, and we deem it appropriate to modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender ( see CPL 470.15 [c]; People v. Noel, 106 AD2d 854; People v. Kerr, 43 AD2d 895; see generally People v. Clarence S., 5 AD3d 982).