People v. Strong

• Citation: 152 A.D.3d 1076,60 N.Y.S.3d 536
• Decision Date: 27 July 2017
• Docket Number: 107535.
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph STRONG, Appellant.
• Court: New York Supreme Court Appellate Division

152 A.D.3d 1076
60 N.Y.S.3d 536

The PEOPLE of the State of New York, Respondent,
v.
Joseph STRONG, Appellant.

107535.

Supreme Court, Appellate Division, Third Department, New York.

July 27, 2017.

60 N.Y.S.3d 536

Jane M. Bloom, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

60 N.Y.S.3d 537

Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and CLARK, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered February 18, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (seven counts).

In satisfaction of a multicount indictment, defendant pleaded guilty to burglary in the second degree (seven counts), waived his right to appeal and thereafter was sentenced to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. Upon appeal, we determined that, despite defendant's valid appeal waiver, to the extent that he had not been adequately apprised that the payment of restitution was part of his plea bargain, County Court erred in imposing sentence without first offering him an opportunity to withdraw his plea ( 124 A.D.3d 992, 992–993, 1 N.Y.S.3d 532 [2015] ). We also found that County Court had failed to make the requisite youthful offender determination ( id. at 993, 1 N.Y.S.3d 532 ). Accordingly, we vacated defendant's sentence and remitted the matter for further proceedings (id. ). Upon remittal, County Court vacated its prior order imposing restitution, denied defendant youthful offender status and, once again, sentenced defendant, in accordance with his negotiated plea, to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Defendant contends that County Court abused its discretion in denying him youthful offender status and that the sentence imposed was harsh and excessive. "[T]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court's discretion and, absent a clear abuse of that discretion, its decision will not be disturbed" ( People v. Dorfeuille, 127 A.D.3d 1414, 1415, 7 N.Y.S.3d 642 [2015] [internal quotation marks and citation omitted], lv. denied 26 N.Y.3d 928, 17 N.Y.S.3d 91, 38 N.E.3d 837 [2015] ; accord People v. Clark, 84 A.D.3d 1647, 1647, 925 N.Y.S.2d 674 [2011] ). Upon our review of the record, we are unpersuaded that County Court abused its discretion in denying defendant's application for youthful offender status (see CPL 720.20[1] ). In making its determination, County Court considered numerous mitigating circumstances, including, among other things, defendant's youth, his lack of a criminal record or prior acts of violence, his cooperation with authorities, his familial history and his expressed remorse for his conduct (see People v. Peterson, 127 A.D.3d 1333, 1334, 6 N.Y.S.3d 795 [2015], lv. denied 25 N.Y.3d 1206, 16 N.Y.S.3d 528, 37 N.E.3d 1171 [2015] ; People v. Cruickshank, 105 A.D.2d 325, 334–335, 484 N.Y.S.2d 328 [1985], affd. sub nom. People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530 [1986] ). Nevertheless, based upon the seriousness of the charges for which defendant was convicted and the fact that he willingly participated in seven separate and distinct residential burglaries over a two-week period, we perceive no abuse of discretion in County Court's ultimate decision to deny defendant youthful offender status (see People v. Green, 128 A.D.3d 1282, 1283, 9 N.Y.S.3d 742 [2015] ; People v. Dorfeuille, 127 A.D.3d at 1415, 7 N.Y.S.3d 642 ). Nor do we find any extraordinary circumstances or an abuse of discretion that would warrant a reduction of his sentence (see People v. Tarver, 149 A.D.3d 1350, 1350, 50 N.Y.S.3d 310 [2017]; People v. Butler, 111 A.D.3d 1024, 1025, 975 N.Y.S.2d 218 [2013], lv. denied

60 N.Y.S.3d 538

23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ). Defendant's remaining claims are without merit.

McCARTHY, J.P., DEVINE and CLARK, JJ., concur.

GARRY, J. (dissenting).

I respectfully dissent. Other than retribution, there are three established purposes of sentencing: rehabilitation, deterrence, and the protection of society by isolating the offender (see People v. Martinez, 26 N.Y.3d 196, 202, 21 N.Y.S.3d 196, 42 N.E.3d 693 [2015, Pigott, J., dissenting]; People v. Broadie, 37 N.Y.2d 100, 112, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ; People v. Raucci, 136 A.D.2d 48, 49, 525 N.Y.S.2d 730 [1988] ). The paramount and overarching concern is the result upon society; that is, in what manner a particular sentence imposed upon an individual comports with the advancement of our societal goals. Here, I cannot find a societal benefit arising from the sentence imposed. Therefore, considering the gravity of the matter, and despite my recognition of our customary deference to the sentencing court, I must dissent.

The underlying circumstances presented here are more tragic and compelling in nature than the tragedies of poor choices and criminality that we so often, too often, see with young defendants; in the initial sentencing proceeding, County Court described defendant's circumstances as among "the saddest [the court had] ever heard of." At the time of these crimes, defendant was 18...