PEOPLE v. WILSON (2020)

MEMORANDUM AND ORDER

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

Memorandum:  We previously held this case, reserved decision, and remitted the matter to County Court to make and state for the record a determination of whether defendant is a youthful offender (People v. Wilson, 151 A.D.3d 1836, 1837, 58 N.Y.S.3d 775 [4th Dept. 2017];  see generally People v. Middlebrooks, 25 N.Y.3d 516, 525–527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015]).  On remittal, the court denied defendant youthful offender treatment.  Specifically, it found that there were no mitigating circumstances bearing directly on the manner in which the crime was committed and, therefore, defendant was not an eligible youth upon his conviction of criminal sexual act in the first degree (Penal Law § 130.50[3]), an offense in which he was the sole participant (see CPL 720.10[2][a][iii];  [3];  People v. Lewis, 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015]).  We conclude that the court did not thereby abuse its discretion (see generally Middlebrooks, 25 N.Y.3d at 526–527, 14 N.Y.S.3d 296, 35 N.E.3d 464;  People v. Garcia, 84 N.Y.2d 336, 342–343, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994];  People v. Dukes, 156 A.D.3d 1443, 1443, 65 N.Y.S.3d 828 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018]).

Similarly, we conclude that the court did not abuse its discretion in refusing to grant defendant's request for an updated presentence report (see generally People v. Kuey, 83 N.Y.2d 278, 282–283, 609 N.Y.S.2d 568, 631 N.E.2d 574 [1994];  People v. Campbell, 111 A.D.3d 1253, 1253–1254, 974 N.Y.S.2d 205 [4th Dept. 2013], lv denied 23 N.Y.3d 1018, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014]).  Here, even though seven years had elapsed since the preparation of the original presentence report, the court had before it all the information necessary regarding the manner in which the crime was committed to make a determination of defendant's eligibility for youthful offender treatment (see People v. Perry, 278 A.D.2d 933, 933, 718 N.Y.S.2d 768 [4th Dept. 2000], lv denied 96 N.Y.2d 866, 730 N.Y.S.2d 41, 754 N.E.2d 1124 [2001];  People v. Allen W., 129 A.D.2d 867, 868, 513 N.Y.S.2d 900 [3d Dept. 1987];  cf. People v. Jarvis, 170 A.D.3d 1622, 1623, 96 N.Y.S.3d 796 [4th Dept. 2019]).  Finally, we conclude that the sentence is not unduly harsh or severe.

Mark W. Bennett

Clerk of the Court