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

599
KA 14-00470
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE J. STITT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered August 12, 2013. The judgment
convicted defendant, upon his plea of guilty, of robbery in the second
degree and robbery in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of robbery in the second degree (Penal Law
§ 160.10 [2] [b]) and robbery in the third degree (§ 160.05). We
reject defendant’s contention that Supreme Court erred in failing to
consider adequately his eligibility for youthful offender treatment
(see generally People v Middlebrooks, 25 NY3d 516, 525-527; People v
Rudolph, 21 NY3d 497, 499-501). At sentencing, the court denied
defendant’s request for youthful offender treatment, and attributed
the denial to the seriousness of the crimes, defendant’s prior legal
history, and defendant’s failure to take responsibility for his
actions. The court’s remarks establish that it “made an independent
determination” whether to adjudicate defendant a youthful offender
(People v Richardson, 128 AD3d 988, 989, lv denied 25 NY3d 1206; see
People v Fate, 117 AD3d 1327, 1329, lv denied 24 NY3d 1083; see
generally People v Jackson, 119 AD3d 1361, 1361-1362, lv denied 23
NY3d 1063), and that it did not deny defendant’s request merely
because defendant had been convicted of an armed felony (cf.
Middlebrooks, 25 NY3d at 525-526), or in deference to the plea
agreement (cf. Rudolph, 21 NY3d at 501; People v Potter, 114 AD3d
1183, 1184).

     We recognize that the court did not explicitly address the
threshold issue whether defendant was an eligible youth
notwithstanding his conviction of an armed felony (see CPL 720.10 [2]
                                 -2-                           599
                                                         KA 14-00470

[a] [ii]; [3]), and that, in general, a court sentencing a defendant
whose only barrier to youthful offender eligibility is his or her
conviction of an armed felony “is required to determine on the record
whether the defendant is an eligible youth by considering the presence
or absence of the factors set forth in CPL 720.10 (3)” (Middlebrooks,
25 NY3d at 527). In our view, however, a court in an armed felony
case can satisfy its obligation under Middlebrooks by declining to
adjudicate the defendant a youthful offender after consideration on
the record of factors pertinent to a determination whether an eligible
youth should be adjudicated a youthful offender (see id. at 527;
People v Thomas R.O., 136 AD3d 1400, 1402), thereby demonstrating that
it implicitly resolved the threshold issue of eligibility in the
defendant’s favor (cf. People v Lowe, 25 NY3d 516, 521 n 1), or
assumed, arguendo, that the defendant was an eligible youth (see e.g.
People v Lewis, 128 AD3d 1400, 1400, lv denied 25 NY3d 1203). We
therefore conclude that the record here “belies defendant’s contention
that the court [erred in failing] to determine whether he was eligible
for youthful offender status” (People v Michael A.C. [appeal No. 2],
128 AD3d 1359, 1360, lv denied 25 NY3d 1168; cf. People v Melendez,
132 AD3d 471, 471).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
