PEOPLE v. LINDSEY (2018)

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 his plea of guilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).  At sentencing, defendant sought youthful offender status.  Because defendant was convicted of an armed felony (see CPL 1.20[41][a];  People v. Quinones, 140 A.D.3d 1693, 1693–1694, 34 N.Y.S.3d 294 [4th Dept. 2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ), he was ineligible for youthful offender status unless, insofar as relevant here, the court “determine[d] that there are mitigating circumstances bearing directly upon the manner in which the crime was committed” (People v. Middlebrooks, 25 N.Y.3d 516, 519, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015];  see CPL 720.10[2][a][ii];  [3][i] ).  County Court initially determined that defendant was ineligible for youthful offender status because there were no such mitigating circumstances in this case.  The court further determined, in the alternative, that defendant should not be granted youthful offender status even had he been eligible.

Initially, we agree with defendant that the court erred in determining that he was ineligible for youthful offender status.  Although it is well established that a defendant's lack of criminal record is not a qualifying mitigating circumstance (see People v. Garcia, 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994];  People v. Victor J., 283 A.D.2d 205, 206, 724 N.Y.S.2d 162 [1st Dept. 2001], lv denied 96 N.Y.2d 942, 733 N.Y.S.2d 383, 759 N.E.2d 382 [2001] ), it is equally well established that “lack of injury to others and nondisplay of a weapon [constitute] qualifying mitigating circumstances” (Garcia, 84 N.Y.2d at 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077;  see People v. Marquis A., 145 A.D.3d 61, 68–69, 40 N.Y.S.3d 609 [3d Dept. 2016] ).  Here, it is undisputed that defendant did not use or display the gun at issue, nor did its possession result in injury to others.  Thus, there are “mitigating circumstances bearing directly upon the manner in which the crime was committed” (Middlebrooks, 25 N.Y.3d at 519, 14 N.Y.S.3d 296, 35 N.E.3d 464;  see CPL 720.10[3][i] ), and it follows that defendant is eligible for youthful offender status (see Marquis A., 145 A.D.3d at 68–69, 40 N.Y.S.3d 609).

Notwithstanding defendant's eligibility for youthful offender status, however, we agree with the court that, considering the “broad range of factors pertinent to any youthful offender determination” (Middlebrooks, 25 N.Y.3d at 527, 14 N.Y.S.3d 296, 35 N.E.3d 464;  see People v. Cruickshank, 105 A.D.2d 325, 334, 484 N.Y.S.2d 328 [3d Dept. 1985], affd 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ), defendant should not be afforded youthful offender status under the circumstances of this case.  We therefore affirm the judgment on the alternative ground articulated by the court at sentencing (see generally People v. Nicholson, 26 N.Y.3d 813, 825–826, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016];  People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ).

Defendant's remaining contention is unpreserved for our review (see People v. Russell, 133 A.D.3d 1199, 1200, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] ), and we decline to review it as a matter of discretion in the interest of justice (see generally CPL 470.15[3][c] ).  Finally, we note that the uniform sentence and commitment sheet incorrectly indicates that defendant was “re-sentenced as a probation violator,” and it must therefore be amended by striking that notation.