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People v. Strong

Supreme Court of New York, Third Department

July 27, 2017


          Calendar Date: June 9, 2017

          Jane M. Bloom, Monticello, for appellant.

          James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Egan Jr., Devine and Clark, JJ.


          EGAN JR., J.

         Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered February 18, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (seven counts).

         In satisfaction of a multicount indictment, defendant pleaded guilty to burglary in the second degree (seven counts), waived his right to appeal and thereafter was sentenced to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. Upon appeal, we determined that, despite defendant's valid appeal waiver, to the extent that he had not been adequately apprised that the payment of restitution was part of his plea bargain, County Court erred in imposing sentence without first offering him an opportunity to withdraw his plea (124 A.D.3d 992, 992-993 [2015]). We also found that County Court had failed to make the requisite youthful offender determination (id. at 993). Accordingly, we vacated defendant's sentence and remitted the matter for further proceedings (id.). Upon remittal, County Court vacated its prior order imposing restitution, denied defendant youthful offender status and, once again, sentenced defendant, in accordance with his negotiated plea, to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. Defendant now appeals.

         We affirm. Defendant contends that County Court abused its discretion in denying him youthful offender status and that the sentence imposed was harsh and excessive. "[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 Dorfeuille, 127 A.D.3d 1414, 1415 [2015] [internal quotation marks and citation omitted], lv denied 26 N.Y.3d 928 [2015]; accord People v Clark, 84 A.D.3d 1647, 1647 [2011]). Upon our review of the record, we are unpersuaded that County Court abused its discretion in denying defendant's application for youthful offender status (see CPL 720.20 [1]). In making its determination, County Court considered numerous mitigating circumstances, including, among other things, defendant's youth, his lack of a criminal record or prior acts of violence, his cooperation with authorities, his familial history and his expressed remorse for his conduct (see People v Peterson, 127 A.D.3d 1333, 1334 [2015], lv denied 25 N.Y.3d 1206');">25 N.Y.3d 1206 [2015]; People v Cruickshank, 105 A.D.2d 325, 334-335 [1985], affd sub nom. People v Dawn Maria C., 67 N.Y.2d 625');">67 N.Y.2d 625');">67 N.Y.2d 625');">67 N.Y.2d 625 [1986]). Nevertheless, based upon the seriousness of the charges for which defendant was convicted and the fact that he willingly participated in seven separate and distinct residential burglaries over a two-week period, we perceive no abuse of discretion in County Court's ultimate decision to deny defendant youthful offender status (see People v Green, 128 A.D.3d 1282, 1283 [2015]; People v Dorfeuille, 127 A.D.3d at 1215). Nor do we find any extraordinary circumstances or an abuse of discretion that would warrant a reduction of his sentence (see People v Tarver, 149 A.D.3d 1350, 1350 [2017]; People v Butler, 111 A.D.3d 1024, 1025 [2013], lv denied 23 N.Y.3d 961');">23 N.Y.3d 961 [2014]). Defendant's remaining claims are without merit.

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

          Garry, J. (dissenting).

         I respectfully dissent. Other than retribution, there are three established purposes of sentencing: rehabilitation, deterrence, and the protection of society by isolating the offender (see People v Martinez, 26 N.Y.3d 196, 202 [2015, Pigott, J., dissenting]; People v Broadie, 37 N.Y.2d 100, 112 [1975], cert denied 423 U.S. 950');">423 U.S. 950 [1975]; People v Raucci, 136 A.D.2d 48, 49 [1988]). The paramount and overarching concern is the result upon society; that is, in what manner a particular sentence imposed upon an individual comports with the advancement of our societal goals. Here, I cannot find a societal benefit arising from the sentence imposed. Therefore, considering the gravity of the matter, and despite my recognition of our customary deference to the sentencing court, I must dissent.

         The underlying circumstances presented here are more tragic and compelling in nature than the tragedies of poor choices and criminality that we so often, too often, see with young defendants; in the initial sentencing proceeding, County Court described defendant's circumstances as among "the saddest [the court had] ever heard of." At the time of these crimes, defendant was 18 years old and had been living alone, without adult support, guidance or supervision, for two years. His mother left his family when he was three years old. He and his brother were thereafter raised by their father. His father died when defendant was 16. By all accounts, before his father's death, defendant was on sound footing. He was a very capable student. He attended school regularly and got good grades; he had been accepted into a well-regarded college. He played tennis and was employed during vacations and after school in a local children's summer camp and at a grocery store. He also worked - apparently as an intern or volunteer - in adult care facilities and a hospital, in preparation for a future career in health care. He was well respected by teachers and peers. He had no record of any school discipline issues, much less any issues involving criminal conduct of any nature.

         After being orphaned, however, no adult relative or friend stepped forward to fill the resulting vacuum of parental guidance and support. There is no suggestion in the limited record that he was provided with any grief counseling services or other such support during the aftermath of this loss, to assist in coping with his bereavement. What the record does reveal is that thereafter he lived without any form of adult supervision or assistance in a house that he and his brother purchased with their father's life insurance benefits. It is evident - for reasons again unexplained and undeveloped in the record - that he had a poor relationship with his brother. In the absence of any supportive family contacts, his life apparently spiraled out of control, and there was no one present to check his descent. He dropped out of school without graduating and began to abuse drugs and alcohol. In the midst of all of this, he also came to realize that he was gay. At some point before these crimes were committed, he became involved with his codefendants, who, as described by County Court, "targeted" defendant because of his sexual orientation, moved into his house and took advantage of him in a manner that, during the first sentencing, the court described as "to a certain extent victimiz[ation]."

         Significantly, without in any manner minimizing the severity of defendant's crimes and particularly the impact of these crimes upon the victims, it must be clearly noted that they occurred in a limited, two-week period of time. This crime spree occurred in the midst of what can only be understood as a major life crisis, in light of defendant's history and upon review of the surrounding circumstances. Entirely lacking is any suggestion of callous behavior on defendant's part, or evil intent. Instead, the circumstances of this two-week period strongly suggest a brief and terrible downward spiral, with terrible consequences. Following his arrest, defendant was fully cooperative with police and gave a confession that may have aided in implicating his codefendants. Further, although defendant was not the ringleader, and his participation was limited to driving while his codefendants ...

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