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

481
KA 11-01995
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY STEWART, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK 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 (William D.
Walsh, J.), rendered August 29, 2011. The appeal was held by this
Court by order entered June 19, 2015, decision was reserved and the
matter was remitted to Onondaga County Court for further proceedings
(129 AD3d 1700). The proceedings were held and completed (Thomas J.
Miller, J.).

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

     Memorandum: We previously held this case, reserved decision, and
remitted the matter to County Court to make and state for the record
its determination whether defendant is a youthful offender (People v
Stewart, 129 AD3d 1700, 1701). Upon remittal, the court declined to
adjudicate defendant a youthful offender, and we now affirm. Inasmuch
as defendant was convicted of robbery in the first degree (Penal Law
§ 160.15 [4]), an armed felony offense (see CPL 1.20 [41] [b]), he “is
ineligible for a youthful offender adjudication unless the court
concludes, insofar as relevant here, that there are ‘mitigating
circumstances that bear directly upon the manner in which the crime
was committed’ ” (People v Pulvino, 115 AD3d 1220, 1223, lv denied 23
NY3d 1024; see CPL 720.10 [3] [i]). The court properly concluded that
there were no such mitigating circumstances in this case and therefore
did not abuse its discretion in refusing to afford defendant youthful
offender status (see People v Juliano, 128 AD3d 1521, 1522, lv denied
26 NY3d 931; People v Smith, 118 AD3d 1492, 1493-1494, lv denied 25
NY3d 953; People v McPhee, 116 AD3d 714, 715, lv denied 23 NY3d 1040).
Contrary to defendant’s contention, the fact that he may have used
only a BB gun is not a mitigating circumstance inasmuch as the victim
testified that it appeared that defendant had a sawed-off shotgun,
which he pointed at the victim’s head while demanding money (see
                                 -2-                  481
                                                KA 11-01995

People v Henry, 76 AD3d 1031, 1031).




Entered:   June 10, 2016               Frances E. Cafarell
                                       Clerk of the Court
