        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1179
KA 12-00387
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAKOTA MIX, DEFENDANT-APPELLANT.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (M.
William Boller, A.J.), rendered January 23, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal sale of a
controlled substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of criminal sale of a controlled substance in the fifth
degree (Penal Law § 220.31), defendant contends that County Court
abused its discretion in denying his request to adjudicate him a
youthful offender. We reject that contention. “ ‘The determination .
. . whether to grant . . . youthful offender status rests within the
sound discretion of the court and depends upon all the attending facts
and circumstances of the case’ ” (People v Dawson, 71 AD3d 1490, 1490,
lv denied 15 NY3d 749). Here, the record reflects that the court
considered the relevant facts and circumstances in denying defendant’s
request. Although the crime was not particularly grave and did not
involve violence, the remaining factors to be considered upon the
application for youthful offender treatment weighed against such a
determination (cf. People v Shrubsall, 167 AD2d 929, 930). Defendant
has been involved with probation since he was 12 years old based on
orders adjudicating him to be a person in need of supervision and
juvenile delinquency adjudications and has been offered many services,
but he continued to violate probation and was ultimately placed with
the Office of Children and Family Services for 18 months. Defendant
did not take responsibility for the instant offense and was
uncooperative during his presentence interview. Defendant dropped out
of school after the 10th grade and, although he was 19 years old at
the time of sentencing, he had no verifiable employment and no plans
for future employment in the area. The probation officer recommended
against probation and believed that defendant’s prospects for
                                 -2-                          1179
                                                         KA 12-00387

rehabilitation and hope for a future constructive life were poor.   We
therefore conclude that the court did not abuse its discretion in
denying defendant’s request.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
