PEOPLE v. ALLEN (2022)

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Danny Chun, J.), imposed August 5, 2020, upon his convictions of robbery in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. Allen, 179 A.D.3d 941, 114 N.Y.S.3d 250), the resentence being two concurrent determinate terms of imprisonment of 51/212 years, to be followed by a period of postrelease supervision of 3 years, and the imposition of mandatory surcharges and fees.

ORDERED that the resentence is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the resentence as imposed mandatory surcharges and fees;  as so modified, the resentence is affirmed.

The Supreme Court providently exercised its discretion in declining to adjudicate the defendant a youthful offender.  One exception to eligibility for youthful offender treatment is where, as here, a defendant has been convicted of criminal possession of weapon in the second degree, which is an armed felony (see CPL 720.10[2][a][ii];  1.20[41];  Penal Law § 70.02;  People v. Allen, 179 A.D.3d 941, 114 N.Y.S.3d 250).  Under these circumstances, a defendant is eligible to have this conviction replaced with a youthful offender adjudication only if there existed “mitigating circumstances that [bore] directly upon the manner in which the crime was committed,” or if his or her participation in the crime was “relatively minor” (CPL 720.10[3];  see CPL 720.10[2][a];  People v. Rosado, 173 A.D.3d 776, 777, 99 N.Y.S.3d 702;  People v. Mackson, 154 A.D.3d 780, 781, 61 N.Y.S.3d 508).  “The phrase ‘mitigating circumstances that bear directly upon the manner in which the crime was committed,’ connotes ‘[f]actors “directly” flowing from and relating to defendant's personal conduct while committing the crime,’ and generally does not include a ‘defendant's age, background [and] criminal history’ ” (People v. D.M., 168 A.D.3d 879, 880, 89 N.Y.S.3d 906, quoting People v. Garcia, 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077;  see People v. Cherry, 178 A.D.3d 718, 718–719, 111 N.Y.S.3d 234).  Here, there were insufficient mitigating circumstances bearing directly upon the manner in which the crime was committed (see CPL 720.10[3];  People v. Garcia, 84 N.Y.2d at 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077;  People v. Keith, 144 A.D.3d 705, 706, 39 N.Y.S.3d 808), and the defendant's participation in the crime was not relatively minor (see CPL 720.10[3];  People v. Cherry, 178 A.D.3d at 718–719, 111 N.Y.S.3d 234;  People v. D.M., 168 A.D.3d 879, 89 N.Y.S.3d 906;  People v. Henry, 76 A.D.3d 1031, 1031, 907 N.Y.S.2d 685).  Moreover, upon consideration of the relevant factors (see People v. Marcel G., 183 A.D.3d 667, 123 N.Y.S.3d 162), the court further providently exercised its discretion in denying youthful offender treatment with respect to the defendant's conviction of robbery in the first degree (see People v. McEachern, 163 A.D.3d 850, 81 N.Y.S.3d 571;  cf.  People v. Terrence L., 195 A.D.3d 1041, 150 N.Y.S.3d 126;  People v. Marcel G., 183 A.D.3d 667, 123 N.Y.S.3d 162).

The defendant's contentions concerning the terms of imprisonment imposed have been rendered academic by the defendant's completion of those portions of his resentence (see People v. Espinoza, 194 A.D.3d 1070, 1071, 144 N.Y.S.3d 603).  The periods of postrelease supervision imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

However, as consented to by the People, we modify the resentence by vacating the mandatory surcharges and fees imposed on the defendant at resentencing (see People v. Mitchell, 201 A.D.3d 818, 157 N.Y.S.3d 388;  People v. Dickerson, 201 A.D.3d 731, 156 N.Y.S.3d 881;  People v. Jeorid G., 200 A.D.3d 1069, 155 N.Y.S.3d 819;  People v. Henry P.-M., 196 A.D.3d 650, 148 N.Y.S.3d 392;  People v. Johnson, 193 A.D.3d 1076, 1077, 143 N.Y.S.3d 222).

BARROS, J.P., CHAMBERS, MILLER and DOWLING, JJ., concur.