PEOPLE v. MCCALL (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and robbery in the second degree (§ 160.10 [1]). Defendant contends that County Court failed to make the necessary determination whether he was eligible for youthful offender treatment (see CPL 720.10 [3]; see generally People v. Middlebrooks, 25 N.Y.3d 516, 525-527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015]; People v. Rudolph, 21 N.Y.3d 497, 499-501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013]). We reject that contention. “[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” (People v. McCall, 177 A.D.3d 1395, 1396, 112 N.Y.S.3d 846 [4th Dept. 2019], lv denied 34 N.Y.3d 1130, 118 N.Y.S.3d 509, 141 N.E.3d 465 [2020] [internal quotation marks omitted]; see People v. Rice, 175 A.D.3d 1826, 1826, 109 N.Y.S.3d 808 [4th Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 511, 141 N.E.3d 467 [2020]; see also People v. Stitt, 140 A.D.3d 1783, 1784, 33 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016]). Here, the court “implicitly resolved the threshold issue of eligibility in defendant's favor” (People v. Macon, 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019]; see People v. Keith B.J., 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018]).

Contrary to defendant's further contention, we conclude that the court did not abuse its discretion in refusing to grant him youthful offender status (see McCall, 177 A.D.3d at 1396, 112 N.Y.S.3d 846; Rice, 175 A.D.3d at 1826, 109 N.Y.S.3d 808; Macon, 169 A.D.3d at 1440, 92 N.Y.S.3d 812), particularly in light of the seriousness of the offense and defendant's failure to accept any responsibility (see People v. Ford, 144 A.D.3d 1682, 1683, 42 N.Y.S.3d 491 [4th Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017]), and we perceive no basis for exercising our discretion in the interest of justice to adjudicate defendant a youthful offender (cf. Keith B.J., 158 A.D.3d at 1160-1161, 70 N.Y.S.3d 291; People v. Thomas R.O., 136 A.D.3d 1400, 1402-1403, 25 N.Y.S.3d 766 [4th Dept. 2016]).

Finally, the sentence is not unduly harsh or severe.