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

574
KA 13-02107
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL D. AGEE, DEFENDANT-APPELLANT.


ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered March 14, 2013. The appeal was held by this
Court by order entered June 19, 2015, decision was reserved and the
matter was remitted to Niagara County Court for further proceedings
(129 AD3d 1559). The proceedings were held and completed.

     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 for County Court to make and state for the record
a determination of whether defendant is a youthful offender (People v
Agee, 129 AD3d 1559, 1561; see generally People v Middlebrooks, 25
NY3d 516, 525-527; People v Rudolph, 21 NY3d 497, 499-501). Upon
remittal, the court declined to grant defendant youthful offender
treatment, stating that it was “not persuaded” of the existence of
“any mitigating factor or factors” that would render defendant an
eligible youth notwithstanding his conviction of armed felonies (see
CPL 720.10 [2] [a] [ii]; [3]). We conclude that the court did not
thereby abuse its discretion (see generally Middlebrooks, 25 NY3d at
526-527). Defendant’s participation in the crimes cannot be deemed
“relatively minor” (CPL 720.10 [3] [ii]), and we conclude that the
court properly determined that there are no “mitigating circumstances
that bear directly upon the manner in which the [crimes were]
committed” (CPL 720.10 [3] [i]; 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). In any event, even assuming, arguendo, that
there is sufficient evidence of mitigating circumstances to render
defendant eligible for youthful offender treatment, we nevertheless
conclude, based on our review of the record and the factors relevant
in making a youthful offender determination (see People v Thomas R.O.,
136 AD3d 1400, 1402; see generally CPL 720.20 [1] [a]), that the
court’s refusal to adjudicate defendant a youthful offender was not an
                                 -2-                           574
                                                         KA 13-02107

abuse of discretion (see People v Lewis, 128 AD3d 1400, 1400, lv
denied 25 NY3d 1203), and we decline to exercise our interest of
justice jurisdiction to adjudicate him a youthful offender (see People
v Hall, 130 AD3d 1495, 1496, lv denied 26 NY3d 968; cf. Thomas R.O.,
136 AD3d at 1403).




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