                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   107375
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     OPINION AND ORDER

MARQUIS A.,
                    Appellant.
________________________________


Calendar Date:   September 16, 2016

Before:   Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

                             __________


     Carolyn B. George, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered January 9, 2015 in Albany County, upon a verdict
convicting defendant of the crime of robbery in the first degree.

      In March 2014, the victim, a high school senior, advertised
a pair of high-end basketball sneakers for sale on Facebook.
Upon receiving a Facebook message from an account, subsequently
identified as belonging to defendant, expressing an interest in
purchasing the sneakers, the victim agreed to meet the potential
buyer at a McDonald's in the City of Albany. After the victim
and a friend drove to the agreed-upon location and waited in the
parking lot for almost a half hour, the victim received a
Facebook message from the potential buyer providing a description
of what he was wearing and stating that he had arrived. As the
                              -2-                107375

victim exited the vehicle, he was approached by defendant, a 16-
year-old male. Outside the car, the victim handed defendant the
sneakers and permitted him to try them on. According to the
victim, defendant then stated, "you're not getting these back,"
lifted up his shirt, revealed what appeared to be a gun tucked
into his waistband and fled with the sneakers.

      Upon an indictment charging him with robbery in the first
degree, defendant was tried by a jury and convicted as charged.
He was sentenced to nine years in prison followed by five years
of postrelease supervision. He appeals.

      Defendant's challenge to the legal sufficiency of the
evidence supporting his conviction is unpreserved for our review,
as he failed to make a particularized motion to dismiss at trial
directed at the specific deficiencies in the evidence now
challenged (see People v Hawkins, 11 NY3d 484, 492 [2008]; People
v Brown, 139 AD3d 1178, 1178 [2016]). Nor did his subsequent CPL
330.30 motion to set aside the verdict have the effect of
preserving the issue (see People v Morris, 140 AD3d 1472, 1472-
1473 [2016]; People v Simmons, 111 AD3d 975, 977 [2013], lv
denied 22 NY3d 1203 [2014]). Because defendant also challenges
the verdict as against the weight of the evidence, we will
evaluate the adequacy of the evidence adduced as to each element
of the charged offense as part of that review (see People v
Danielson, 9 NY3d 342, 348-349 [2007]; People v Launder, 132 AD3d
1151, 1151 [2015], lv denied 27 NY3d 1153 [2016]; People v
Briggs, 129 AD3d 1201, 1202 [2015], lv denied 26 NY3d 1038
[2015]).

      Insofar as is relevant here, "[a] person is guilty of
robbery in the first degree when he [or she] forcibly steals
property and when, in the course of the commission of the crime
or of immediate flight therefrom, he or [she] . . . [d]isplays
what appears to be a . . . firearm" (Penal Law § 160.15 [4]).
Defendant contends that the evidence failed to establish that,
during the commission of the theft, he either used force to
obtain the sneakers or "display[ed]" a firearm within the meaning
of the statute. Forcible stealing occurs when, during the
commission of a larceny, the defendant "uses or threatens the
immediate use of physical force upon another person for the
                              -3-                107375

purpose of . . . [p]reventing or overcoming resistance to the
taking of the property or to the retention thereof immediately
after the taking" (Penal Law § 160.00 [1] [emphasis added];
accord People v Gordon, 23 NY3d 643, 649-650 [2014]). To satisfy
the display requirement, the object displayed need not in fact be
a firearm (see People v Lopez, 73 NY2d 214, 220 [1989]; People v
Baskerville, 60 NY2d 374, 380-381 [1983]). Rather, "all that is
required is a 'show[ing] that the defendant consciously displayed
something that could reasonably be perceived as a firearm, with
the intent of forcibly taking property, and that the victim
actually perceived the display'" (People v Grayson, 138 AD3d
1250, 1252 [2016], lv denied 27 NY3d 1132 [2016], quoting People
v Lopez, 73 NY2d at 220; see People v Baskerville, 60 NY2d at
381; People v Colon, 116 AD3d 1234, 1236 [2014], lv denied 24
NY3d 959 [2014]).

      The victim testified that, with the sneakers in hand,
defendant stated, "you're not getting these back," lifted up his
shirt and revealed a black, "block style" object that appeared to
be a gun tucked into his waistband. The victim further explained
that, based upon its location and appearance, he "absolutely"
believed the object to be a gun. Such testimony sufficiently
established that defendant "conspicuously and consciously
conveyed the impression that he [possessed] something which,
under the circumstances, the victim could reasonably conclude was
a firearm" (People v Lopez, 73 NY2d at 222; see People v Toye,
107 AD3d 1149, 1151 [2013], lv denied 22 NY3d 1091 [2014]; People
v Boland, 89 AD3d 1144, 1146 [2011], lv denied 18 NY3d 955
[2012]). Furthermore, upon considering defendant's conduct and
the surrounding circumstances (see People v Gordon, 23 NY3d at
650-651), the jury could reasonably infer that his actions were
intended to ensure his retention of the sneakers rather than
solely to effectuate an escape (see id. at 652; People v Parker,
127 AD3d 1425, 1428 [2015]; People v Gordon, 119 AD3d 1284, 1286
[2014], lv denied 24 NY3d 1002 [2014]).

      The victim's friend, who remained in the passenger seat of
the car throughout the incident, largely corroborated the
testimony of the victim. He testified that, after defendant told
the victim that he was not going to get the sneakers back,
defendant took a few steps back, lifted up his shirt and then ran
                              -4-                107375

away. Although the friend did not see a gun, he explained that
his view of defendant's waist was obstructed by the frame of the
vehicle.

      Defendant did not testify on his own behalf but, in his
statement to police, which was admitted into evidence, he
steadfastly denied displaying a gun or anything that looked like
a firearm during the incident. While a different verdict would
not have been unreasonable had the jury credited defendant's
account, after reviewing the evidence in a neutral light and
according appropriate deference to the jury's interpretation
thereof and assessment of witness credibility, we cannot say that
the conviction was contrary to the weight of the evidence (see
People v Colon, 116 AD3d at 1237-1238; People v Toye, 107 AD3d at
1150-1151; People v Boland, 89 AD3d at 1146; People v Thomas, 12
AD3d 935, 936-937 [2004], lv denied 4 NY3d 749 [2004]).

      With regard to defendant's decision not to testify, it is
settled that "[a] trial court does not have a general obligation
to sua sponte ascertain if the defendant's failure to testify was
a voluntary and intelligent waiver of his [or her] right" (People
v Dolan, 2 AD3d 745, 746 [2003], lv denied 2 NY3d 798 [2004];
accord People v Robles, 115 AD3d 30, 34 [2014], lv denied 22 NY3d
1202 [2014]; see People v Fratta, 83 NY2d 771, 772 [1994]; People
v Cosby, 82 AD3d 63, 66 [2011], lv denied 16 NY3d 857 [2011]).
Nevertheless, when the defense rested, Supreme Court conducted an
inquiry into whether this youthful defendant had been advised of
his right to testify and whether he understood that the decision
to do so belonged to him alone. Defense counsel acknowledged
that he had discussed the matter with defendant on numerous
occasions and defendant confirmed that it was, in fact, his
decision not to testify. Thus, the record unequivocally
establishes that defendant knowingly, voluntarily and
intelligently waived his right to testify (see People v Robles,
115 AD3d at 35-36; People v Mauricio, 8 AD3d 1089, 1090 [2004],
lv denied 3 NY3d 678 [2004]).

      At trial, defendant withdrew his request that the jury be
charged with robbery in the third degree as a lesser included
offense of robbery in the first degree. Thus, Supreme Court's
"failure to submit such offense does not constitute error" (CPL
                              -5-                107375

300.50 [2]; see People v Carralero, 9 AD3d 790, 791 [2004], lv
denied 4 NY3d 742 [2004]; People v Douglas, 194 AD2d 408, 409
[1993], lv denied 82 NY2d 717 [1993]). In any event, "there was
no reasonable view of the evidence that defendant used any type
of force other than the display of what appeared to be a firearm"
(People v Young, 119 AD3d 406, 406 [2014] [internal quotation
marks and citation omitted], lv denied 24 NY3d 1048 [2014]; see
Penal Law §§ 160.05, 160.15 [4]; see generally CPL 300.50 [1];
People v Rivera, 23 NY3d 112, 120 [2014]).

      Finally, we address defendant's challenge to the severity
of the nine-year prison sentence imposed. In so doing, we are
compelled to resolve the apparent confusion on behalf of all
parties involved as to defendant's eligibility for youthful
offender treatment.

      CPL 720.10 codifies the parameters set by the Legislature
for youthful offender eligibility. Under that statute, "a
defendant is 'eligible' for youthful offender status if he or she
was younger than 19 at the time of the crime, unless the crime is
one of several serious felonies excluded by the statute" (People
v Rudolph, 21 NY3d 497, 500 [2013]). CPL 720.10 (2) provides
that youths convicted of an armed felony – as is the case here –
are not eligible youths "except as provided in subdivision three"
(CPL 720.10 [2] [a] [ii], [iii] [emphasis added]; see CPL 1.20
[41] [b]; Penal Law §§ 70.02, 160.15 [4]). Subdivision (3) of
CPL 720.10, in turn, provides:

           "Notwithstanding the provisions of
           subdivision two, a youth who has been
           convicted of an armed felony offense . . .
           is an eligible youth if the court
           determines that one or more of the
           following factors exist: (i) mitigating
           circumstances that bear directly upon the
           manner in which the crime was committed;
           or (ii) where the defendant was not the
           sole participant in the crime, the
           defendant's participation was relatively
           minor although not so minor as to
           constitute a defense to the prosecution"
           (emphasis added).
                              -6-                107375

Thus, the Legislature has provided that those defendants
convicted of an armed felony are eligible youths under limited
certain circumstances.

      Here, all counsel before Supreme Court, as well as the
Probation Department, misunderstood the relevant sentencing
provisions. The presentence investigation report inaccurately
stated that, although defendant would have been eligible for
youthful offender treatment based upon his age, he was ineligible
for such treatment because he had committed an armed felony. At
sentencing, trial counsel for defendant acknowledged – but
seemingly did not dispute – the presentence report's
representation of defendant's youthful offender status. Nor is
there any indication in the record that the People were aware
that youthful offender treatment was an available option. For
its part, Supreme Court sua sponte addressed defendant's
potential eligibility to be treated as a youthful offender,
stating on the record, "To the extent that anyone perceived
youthful offender to be considered it is denied." The court's
summary denial, however, was insufficient to satisfy the
statutory mandate of CPL 720.10. Where, as here, "a defendant
has been convicted of an armed felony . . . pursuant to CPL
720.10 (2) (a) (ii) or (iii), and the only barrier to his or her
youthful offender eligibility is that conviction, the court 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)" (People v Middlebrooks, 25
NY3d 516, 527 [2015]; see CPL 720.10 [1]; People v Daniels, 139
AD3d 1256, 1257-1258 [2016]; People v Stewart, 129 AD3d 1700,
1701 [2015]; People v Fields, 133 AD3d 529, 530 [2015], lv denied
26 NY3d 1145 [2016]). Indeed, "[t]he court must make such a
determination on the record even where defendant has failed to
ask to be treated as a youthful offender" (People v Middlebrooks,
25 NY3d at 527; see People v Daniels, 139 AD3d at 1258).

      The grievous error of the Probation Department, the People
and defense counsel, while not specifically raised on appeal,
cries out for resolution. Since we are vested with the broad,
plenary power to modify a sentence in the interest of justice, we
can address this injustice and, if warranted, exercise our power
to adjudicate defendant a youthful offender (see People v
Delgado, 80 NY2d 780, 783 [1992]; People v Thomas R.O., 136 AD3d
1400, 1402 [2016]; People v Jeffrey VV., 88 AD3d 1159, 1160
                              -7-                107375

[2011]; People v Cruickshank, 105 AD2d 325, 334-335 [1985], affd
sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]).1 Thus, we
consider first whether defendant is an "eligible youth" for
purposes of youthful offender treatment by assessing whether
"mitigating circumstances [exist] that bear directly upon the
manner in which the crime was committed" (CPL 720.10 [3]). We
conclude that such mitigating circumstances are present here.

      While there is no question that defendant stands convicted
of a serious crime, no physical harm or injury resulted from the
incident (cf. People v Garcia, 84 NY2d 336, 342 [1994] [holding
that, under Penal Law § 70.25 (2-b), the lack of injury to others
constitutes a "mitigating circumstance[] that bear[s] directly
upon the manner in which the crime was committed"]; People v
Reyes, 221 AD2d 202, 202 [1995] [same]; People v Santiago, 181
AD2d 460, 461 [1992], affd 80 NY2d 916 [1992] [same]). Further,
defendant did not brandish or even touch what the victim
perceived to be a firearm. Rather, the display of the object –
although undisputedly sufficient to render defendant's conduct
culpable – was fleeting and unaccompanied by any threatening
statements or direct gestures towards the victim or others
(compare People v Stewart, 140 AD3d 1654, 1654-1655 [2016], lv
denied 28 NY3d 937 [2016] [finding no mitigating circumstances
where the defendant pointed what appeared to be a sawed-off
shotgun at the victim's head while demanding money]; People v
Henry, 76 AD3d 1031, 1031 [2010]; see also People v Flores, 134
AD3d 425, 426 [2015]). Under the unique facts and circumstances
of this case, we find the presence of sufficient mitigating
factors bearing directly upon the manner in which the crime was
committed, thereby rendering defendant an "eligible youth" under
CPL 720.10 for purposes of youthful offender treatment.

      Our inquiry does not end here, however, as we must exercise
our discretion a second time to determine whether defendant,
although an eligible youth, should be granted youthful offender
treatment (see CPL 720.20 [1]; People v Middlebrooks, 25 NY3d at
527). Factors to be considered in determining whether to afford
such treatment to defendant include:


    1
        We note that, during oral argument, the People
specifically requested that this Court assess whether defendant
should be given youthful offender status.
                              -8-                107375

           "the gravity of the crime and manner in
           which it was committed, mitigating
           circumstances, defendant's prior criminal
           record, prior acts of violence,
           recommendations in the presentence
           reports, defendant's reputation, the level
           of cooperation with authorities,
           defendant's attitude toward society and
           respect for the law, and the prospects for
           rehabilitation and hope for a future
           constructive life" (People v Cruickshank,
           105 AD2d at 334; accord People v Thomas
           R.O., 136 AD3d at 1402; People v Peterson,
           127 AD3d 1333, 1334 [2015], lv denied 25
           NY3d 1206 [2015]).

In undertaking this endeavor, we are mindful that "[t]he purpose
of according youthful offender treatment is to avoid
'stigmatizing youths between the ages of 16 and 19 with criminal
records triggered by hasty or thoughtless acts which, although
crimes, may not have been the serious deeds of hardened
criminals'" (People v Cruickshank, 105 AD2d at 333, quoting
People v Drayton, 39 NY2d 580, 584 [1976]; accord People v
Jeffrey VV., 88 AD3d at 1160).

      Defendant was just 16 years old at the time of the present
offense and, although he had served a period of juvenile
probation, he had no prior criminal record or history of violence
(see People v Thomas R.O., 136 AD3d at 1402; People v Amir W.,
107 AD3d 1639, 1641 [2013]; People v William S., 26 AD3d 867, 868
[2006]). We reiterate that the crime, although serious, did not
cause physical injury to anyone involved and defendant neither
brandished the object nor uttered any direct threats of violence
during the incident. After his arrest, defendant cooperated with
police and provided a statement admitting that he had taken the
shoes with no intention of returning them to the victim but
denying that he had possessed or displayed anything that
resembled a gun (see People v Amir W., 107 AD3d at 1641; People v
Cruickshank, 105 AD2d at 334). Mindful of the Probation
Department's recommendation that defendant be held accountable
for his actions, and weighing all of the appropriate factors, we
choose to exercise our discretion to vacate the judgment of
conviction and adjudicate defendant a youthful offender (see
                              -9-                  107375

People v Thomas R.O., 136 AD3d at 1402; People v Amir W., 107
AD3d at 1641; People v Jeffrey VV., 88 AD3d at 1160; People v
Andrea FF., 174 AD2d 865, 867 [1991]; People v Cruickshank, 105
AD2d at 335; see generally CPL 720.20 [3]).

      Lastly, we are tasked with determining the appropriate
sentence to be imposed. Penal Law § 60.02 (2) provides that,
where a youthful offender finding has been substituted for a
conviction for a felony, a sentencing court must impose upon the
youthful offender "a sentence authorized to be imposed upon a
person convicted of a class E felony." The permissible prison
sentence for a person convicted of an undesignated class E felony
is an indeterminate sentence with a minimum term of one year and
a maximum term of four years (see Penal Law § 70.00 [2] [e]; [3]
[b]). In view of all of the considerations set forth in our
youthful offender analysis, we find it appropriate to sentence
defendant to 1 to 3 years in prison.

     McCarthy, Garry, Clark and Aarons, JJ., concur.



      ORDERED that the judgment is reversed, as a matter of
discretion in the interest of justice, conviction vacated, and
defendant is declared to be a youthful offender and sentenced to
1 to 3 years in prison.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
