THE PEOPLE OF THE STATE OF NEW YORK v. CLINT PETERSON JR

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Supreme Court, Appellate Division, Third Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CLINT R. PETERSON JR., Appellant.

103605

Decided: April 09, 2015

Before:  Peters, P.J., Lahtinen, Garry and Lynch, JJ. Teresa C. Mulliken, Harpersfield, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  February 18, 2015

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered June 28, 2010, upon a verdict convicting defendant of the crimes of promoting a sexual performance by a child and possessing a sexual performance by a child.

Defendant, then 17 years old, electronically disseminated a sexually explicit image depicting a prepubescent female child to an undercover police officer posing as a 13–year–old girl.   He was thereafter charged with promoting a sexual performance by a child and possessing a sexual performance by a child and, following a jury trial, was convicted on both counts.   County Court declined to grant defendant youthful offender treatment and sentenced him to concurrent terms of six months in jail and a 10–year term of probation.   Defendant appeals.

Defendant's sole challenge on appeal concerns County Court's denial of youthful offender status.   It is settled that “[t]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court's discretion and, absent a clear abuse of that discretion, its decision will not be disturbed” (People v. McLucas, 58 AD3d 950, 951 [2009];  accord People v. Brodhead, 106 AD3d 1337, 1337 [2013], lv denied 22 NY3d 1087 [2014];  see People v. Daniels, 106 AD3d 1189, 1190 [2013], lv denied 21 NY3d 1014 [2013] ).   Factors to be considered in determining whether to grant youthful offender status include “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” (People v. Cruickshank, 105 A.D.2d 325, 334 [1985], affd sub nom.  People v. Dawn Maria C., 67 N.Y.2d 625 [1986];  accord People v. Jeffrey VV., 88 AD3d 1159, 1159 [2011];  People v. Ferguson, 285 A.D.2d 901, 901 [2001], lv denied 96 N.Y.2d 939 [2001] ).

In making its determination, County Court took into consideration several favorable factors, such as defendant's age at the time of the offense, lack of criminal history, excellent reputation in the community, humanitarian efforts and cooperation with police following his arrest by providing a written statement in which he admitted to possessing and sending the sexually explicit photograph that ultimately led to the charges against him.   However, County Court was justifiably concerned about not only the nature of the crimes for which defendant was convicted—the possession and dissemination of a sexually explicit image involving a prepubescent child—but also the hundreds of additional pornographic images of young girls that were discovered upon a forensic analysis of defendant's computer following his arrest.1  The court appropriately observed that defendant's possession of the sexually explicit image that formed the basis of his convictions was not an isolated incident borne out of “curiosity,” and both the preplea and presentencing report concluded that defendant was being dishonest about the ages of the children in the photographs that he was viewing and whether he had saved any of the images that he had received.

In addition, County Court relied upon the negative recommendation of the Probation Department as set forth in the presentence report, which noted defendant's lack of remorse and failure to accept responsibility for his actions.   Also supportive of the court's denial of youthful offender treatment is defendant's failure to obtain a court-ordered mental health evaluation on the basis that, among other claimed reasons, he “[did] not believe that he need [ed] treatment.”   While defendant strongly argues that his conduct should be viewed merely as youthful “sexting” rather than criminal conduct, he does not challenge any of the aforementioned factors or dispute the fact that he engaged in conduct that constituted the crimes for which he was convicted.   Under the circumstances presented here, we find no abuse of County Court's discretion in refusing defendant youthful offender status, nor do we discern any reason to grant youthful offender treatment in the interest of justice (see People v. Fernandez, 106 AD3d 1281, 1286 [2013];  People v. Clark, 84 AD3d 1647, 1647–1648 [2011];  People v. Terpening, 79 AD3d 1367, 1368 [2010], lv denied 16 NY3d 837 [2011];  People v. Driggs, 24 AD3d 888, 889 [2005];  compare People v. Jeffrey VV., 88 AD3d at 1159–1160).

Lahtinen, Garry and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. Contrary to defendant's contention, County Court acted well within its discretion in considering the forensic report for sentencing purposes.   The report, which was prepared by an investigator who had completed hundreds of hours of training in computer forensics and had conducted similar forensic analyses in over 20 cases, was shown to be reliable and accurate and defense counsel had the opportunity to review and respond to it (see People v. Hansen, 99 N.Y.2d 339, 345 [2003];  People v. Massmann, 13 AD3d 808, 809 [2004];  People v. Mason, 299 A.D.2d 724, 726 [2002], lv denied 100 N.Y.2d 564 [2003];  People v. Baker, 292 A.D.2d 644, 645 [2002], lv denied 98 N.Y.2d 635 [2002] )..  FN1. Contrary to defendant's contention, County Court acted well within its discretion in considering the forensic report for sentencing purposes.   The report, which was prepared by an investigator who had completed hundreds of hours of training in computer forensics and had conducted similar forensic analyses in over 20 cases, was shown to be reliable and accurate and defense counsel had the opportunity to review and respond to it (see People v. Hansen, 99 N.Y.2d 339, 345 [2003];  People v. Massmann, 13 AD3d 808, 809 [2004];  People v. Mason, 299 A.D.2d 724, 726 [2002], lv denied 100 N.Y.2d 564 [2003];  People v. Baker, 292 A.D.2d 644, 645 [2002], lv denied 98 N.Y.2d 635 [2002] ).

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