PEOPLE v. CHAPPELLE (2001)

Appeal from a judgment of the County Court of Ulster County (La Buda, J.), rendered January 29, 1999, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

Defendant and a codefendant entered a private residence to steal personal property.   When the homeowner discovered them, they assaulted and injured her.   They were both indicted on charges of burglary in the first degree and assault in the second degree, and each ultimately entered a plea of guilty to the burglary charge.   County Court granted the codefendant's request for youthful offender treatment, but denied defendant's similar request and sentenced him to a prison term of 3 to 6 years.   On this appeal, defendant claims only that County Court erred in denying youthful offender treatment.

 “The decision to grant youthful offender status lies within the sound discretion of the sentencing court and, absent a clear abuse of discretion, the court's determination will not be disturbed * * * ” (People v. Butcher, 236 A.D.2d 742, 742, 653 N.Y.S.2d 736, lv. denied 90 N.Y.2d 891, 662 N.Y.S.2d 434, 685 N.E.2d 215 [citation omitted] ).   The record establishes that the disparate treatment here was based upon County Court's justifiable view that, despite defendant's apparent remorse for participating in the burglary, he failed to accept any responsibility for his role as the primary aggressor whose unprovoked attack injured an innocent person in her own home.   In light of this, County Court's refusal to accord defendant youthful offender treatment was not an abuse of discretion, despite the recommendation of the Probation Department and defendant's lack of a criminal record (see, People v. Mettler, 259 A.D.2d 834, 687 N.Y.S.2d 205;  People v. Jacobs, 228 A.D.2d 753, 643 N.Y.S.2d 731, lv. denied 88 N.Y.2d 987, 649 N.Y.S.2d 394, 672 N.E.2d 620).   Nor do we find that the circumstances here, such as defendant's tragic loss of an older brother a year prior to the burglary, warrant a substitution of our own discretion for that of the trial court (cf., People v. Cruickshank, 105 A.D.2d 325, 333 n. 4, 484 N.Y.S.2d 328, affd. sub nom.   People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530).

ORDERED that the judgment is affirmed.

ROSE, J.

CARDONA, P.J., MERCURE, MUGGLIN and LAHTINEN, JJ., concur.