PEOPLE v. LESTER (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 burglary in the first degree (Penal Law § 140.30 [3] ) and burglary in the second degree (§ 140.25[2] ).  We previously held the case, reserved decision, and remitted the matter for County Court to make and state for the record a determination whether defendant should be afforded youthful offender status (People v. Lester, 155 A.D.3d 1579, 1579, 65 N.Y.S.3d 614 [4th Dept. 2017]; see generally People v. Rudolph, 21 N.Y.3d 497, 499–501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ).  Upon remittal, the court determined that defendant should not be afforded youthful offender status.  We conclude that the court did not thereby abuse its discretion, particularly in view of the nature of the crimes, in which defendant, on one occasion, broke into the home of a 98–year–old woman by climbing through a front porch window, and on another occasion entered the same woman's home through a rear side door and threatened her with a hammer (see generally People v. Mobley, 118 A.D.3d 1336, 1338, 988 N.Y.S.2d 323 [4th Dept. 2014], lv denied 24 N.Y.3d 1121, 3 N.Y.S.3d 763, 27 N.E.3d 477 [2015] ).  In addition, upon our review of the record, we decline to exercise our own discretion in the interest of justice to adjudicate defendant a youthful offender (see People v. Mohawk, 142 A.D.3d 1370, 1371, 38 N.Y.S.3d 469 [4th Dept. 2016]; cf. People v. Thomas R.O., 136 A.D.3d 1400, 1402–1403, 25 N.Y.S.3d 766 [4th Dept. 2016] ).  Finally, we conclude that the sentence is not unduly harsh or severe.