People v. Marquis A.People v. Marquis A.
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Law Office of Mark S. Mishler, PC, Albany (Mark S. Mishler of counsel), for Capital Area Against Mass Incarceration, amicus curiae.
OPINION OF THE COURT
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 victim exited the vehicle, he was ap
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
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” (
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 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 de
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” (
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
“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).
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
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 [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” (
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
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
“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 ‘[stigmatiz]ing 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).
Lastly, we are tasked with determining the appropriate sentence to be imposed.
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.