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

759
KA 10-00553
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AMIR W., DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered January 15, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by adjudicating defendant a youthful offender and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). We agree with defendant that
the waiver of the right to appeal is invalid because “the minimal
inquiry made by County Court was insufficient to establish that the
court engage[d] the defendant in an adequate colloquy to ensure that
the waiver of the right to appeal was a knowing and voluntary choice”
(People v Box, 96 AD3d 1570, 1571, lv denied 19 NY3d 1024 [internal
quotation marks omitted]; see People v Hamilton, 49 AD3d 1163, 1164;
People v Brown, 296 AD2d 860, 860, lv denied 98 NY2d 767).

     We further agree with defendant that he should have been afforded
youthful offender status. “The youthful offender provisions of the
Criminal Procedure Law emanate from a legislative desire not to
stigmatize 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 Drayton,
39 NY2d 580, 584; see generally CPL 720.20). The factors to be
considered in determining an application for youthful offender
treatment include “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
                                 -2-                           759
                                                         KA 10-00553

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 325, 334, affd sub
nom. People v Dawn Maria C., 67 NY2d 625; see People v Shrubsall, 167
AD2d 929, 930).

     A defendant between the ages of 16 and 19 who, like defendant
herein, “has been convicted of an armed felony offense . . . is an
eligible youth if the court determines that . . . [there are]
mitigating circumstances that bear directly upon the manner in which
the crime was committed” (CPL 720.10 [3] [i]), and we conclude that
such is the case here. The record reflects that defendant was the
victim of a brutal attack by multiple perpetrators the day prior to
the armed felony offense at issue herein. When defendant was arrested
by the police on the day of that offense, he told them that a group of
people had assaulted him with wooden boards. The police report states
that defendant had a “large contusion” and “board mark” on the left
side of his head as well as scrapes and bruises on his hands and arms.
Additionally, when defendant was subsequently examined at the jail, he
was noted to have mild head trauma and a small hematoma on his scalp.
Defendant told the police that he had fired a single shot into the
porch of his attackers’ house “to send a message to them to stop
messing with him as he was a serious threat if need be.” According to
defendant, he knew that his attackers would not be home and, indeed,
the record reflects that the residence was unoccupied at the time of
the shooting.

     Defendant was 16 years old at the time of the offense and had no
prior criminal record. After his arrest, defendant cooperated with
the police and provided a written statement in which he admitted his
guilt and expressed remorse for his conduct. Both the presentence
report (PSR) and a memorandum from the Center for Community
Alternatives (CCA) detail defendant’s upbringing, which included abuse
at the hands of his mother’s boyfriends and his maternal grandfather.
Defendant’s father was in and out of prison for most of defendant’s
childhood, including serving an eight-year term of incarceration for
robbery. The CCA memorandum concludes that, “[w]ith the proper
guidance, direction, and services, [defendant] may develop into a
healthy, productive member of his community,” and both the PSR and the
CCA recommend youthful offender treatment (see Shrubsall, 167 AD2d at
931). We conclude that despite defendant’s difficult upbringing, he
has the potential to lead a law-abiding life, and we deem it
appropriate to modify the judgment as a matter of discretion in the
interest of justice by adjudicating him a youthful offender (see
People v William S., 26 AD3d 867, 868; see also People v Noel, 106
AD2d 854, 855; see generally People v Clarence S., 5 AD3d 982, 983).
In light of our determination, we need not address defendant’s
remaining contentions.


Entered:   June 28, 2013                       Frances E. Cafarell
                                               Clerk of the Court
