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

532
KA 12-01160
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TRAVIS O. LEWIS, IV, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CARA A. WALDMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered March 29, 2012. 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 affirmed.

     Memorandum: On appeal 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]), defendant contends, inter alia, that
County Court abused its discretion in refusing to grant him youthful
offender status. Initially, we note that, because “defendant was
convicted of an armed felony, and was the sole participant in the
crime, he could only be adjudicated a youthful offender if ‘mitigating
circumstances’ existed ‘that [bore] directly upon the manner in which
the crime was committed’ ” (People v Stokes, 28 AD3d 592, 592, quoting
CPL 720.10 [3]). Here, even assuming, arguendo, that the court
credited defendant’s statements that he possessed the illegal handgun
to protect his younger brother who had received threats, and that such
a rationale would qualify as mitigating circumstances to permit a
youthful offender adjudication (see generally People v Amir W., 107
AD3d 1639, 1640-1641), we conclude that the court did not abuse its
discretion in refusing to grant defendant youthful offender status
(see People v Mix, 111 AD3d 1417, 1418). In addition, we decline to
grant his request that we exercise our interest of justice
jurisdiction to adjudicate him a youthful offender (see People v
Facen, 67 AD3d 1478, 1479, lv denied 14 NY3d 800, reconsideration
denied 15 NY3d 749; cf. People v Shrubsall, 167 AD2d 929, 930-931).
The record establishes that defendant had several prior arrests
resulting in juvenile prosecutions and a previous youthful offender
adjudication that replaced a misdemeanor conviction, upon which he had
                                 -2-                           532
                                                         KA 12-01160

been sentenced to, inter alia, a term of probation (see Mix, 111 AD3d
at 1418). In addition, he violated that probationary sentence by,
among other things, committing this crime, and he also twice violated
the term of interim probation that the court imposed between the time
of the plea and sentencing (see People v Kocher, 116 AD3d 1301, 1301-
1303).

     Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
