THE PEOPLE OF THE STATE OF NEW YORK v. ANTHONY GREEN

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

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY T. GREEN, Appellant.

106528

Decided: May 28, 2015

Before:  McCarthy, J.P., Lynch, Devine and Clark, JJ. Abbie Goldbas, Utica, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  April 27, 2015

Appeals from a judgment of the County Court of Broome County (Smith, J.), rendered August 2, 2012, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and robbery in the second degree (two counts).

Defendant was charged in two indictments with robbery in the first degree (two counts), robbery in the second degree (four counts), grand larceny in the fourth degree (two counts), burglary in the first degree and petit larceny (three counts).   He thereafter pleaded guilty as charged.   County Court denied defendant's application for youthful offender status, but vacated his guilty plea to all the charges except burglary in the first degree and robbery in the second degree (two counts) and sentenced defendant to an aggregate prison term of nine years, to be followed by five years of postrelease supervision.   Defendant now appeals.

We affirm.   Defendant's sole contention on appeal is that County Court abused its discretion in denying his application for youthful offender status.  “[T]he determination to grant youthful offender treatment rests within the discretion of the sentencing court and will not be disturbed absent a clear abuse of discretion” (People v. Driggs, 24 AD3d 888, 889 [2005];  accord People v. Fernandez, 106 AD3d 1281, 1286 [2013];  see CPL 720.20[1][a] ).   Here, given the gravity of the crimes, which included a home invasion with an accomplice, during which a victim was struck in the head with the butt of a BB gun, defendant's criminal history and the negative recommendation of the Probation Department, we cannot say that County Court abused its discretion in denying defendant youthful offender status (see People v. Carter, 60 AD3d 1103, 1107 [2009], lv denied 12 NY3d 924 [2009];  People v. Anderson, 48 AD3d 896, 898 [2008], lv denied 10 NY3d 859 [2008] ).

McCarthy, J.P., Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

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