State of New York Supreme Court, Appellate Division Third Judicial Department
May 26, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMAAL CLARK, APPELLANT.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered May 7, 2010, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.
The opinion of the court was delivered by: Rose, J.P.
MEMORANDUM AND ORDER
Calendar Date: April 28, 2011
Before: Rose, J.P., Malone Jr., McCarthy, Garry and Egan Jr., JJ.
Defendant and his co-defendant jointly were indicted and charged with two counts of robbery in the second degree. In full satisfaction thereof, defendant pleaded guilty to one count of robbery in the second degree and was sentenced to the agreed-upon prison term of 31/2 years followed by five years of postrelease supervision. Defendant now appeals, contending that County Court abused its discretion in denying his application for youthful offender status.
We affirm. "The 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  [citations omitted]; see People v Boyce, 2 AD3d 984, 987 , lv denied 2 NY3d 796 ; People v Mettler, 259 AD2d 834, 835 ). Although the Probation Department recommended that defendant be accorded youthful offender status, that recommendation was not binding on the sentencing court (see People v Boler, 177 AD2d 738, 739 ), and defendant was aware that his plea agreement did not include youthful offender treatment (see generally People v Shoaf, 63 AD3d 1660 , lv denied 13 NY3d 839 ; People v Wise, 29 AD3d 1216, 1217 , lv denied 7 NY3d 852 ). Additionally, while mitigating factors indeed exist, including defendant's age at the time of the offense (17), lack of a prior criminal history and stated remorse, the record nonetheless reflects that defendant was a willing participant in the underlying robbery. Specifically, defendant admitted during his plea colloquy that he agreed to aid his co-defendant in the robbery, accepted a hammer from his co-defendant and carried it on his person during the commission of the crime and was aware that his co-defendant was armed with a weapon, which defendant believed (albeit erroneously) to be a real gun. Further, the record supports County Court's finding that defendant repeatedly attempted to minimize his role in the crime. Under these circumstances, we cannot say that County Court abused its discretion in denying defendant's application for youthful offender treatment (see People v Francis, ___ AD3d ___, ___, 2011 NY Slip Op 02749, *3 ; see generally People v Smith, 34 AD3d 1127 ).
Malone Jr., McCarthy, Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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