People v. Maryalice T. M.

97 A.D.2d 829, 468 N.Y.S.2d 715, 1983 N.Y. App. Div. LEXIS 20615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1983
• Status: Published

Opinion

Appeal by defendant from a judgment of the County Court, Dutchess County (Ritter, J.), rendered February 25, 1981, convicting her of criminally negligent homicide, upon her plea of guilty, and imposing sentence. Judgment modified, as a matter of discretion in the interest of justice, by vacating the conviction of criminally negligent homicide and substituting in its place a finding that defendant is a youthful offender. As so modified, judgment affirmed. In our view, under all the circumstances presented including (1) defendant’s previously unblemished record, (2) the favorable report from the Probation Department regarding both defendant’s attitude and the issue of youthful offender treatment and (3) the fact that the People at the plea hearing offered no opposition to the possible granting of youthful offender treatment, youthful offender treatment should have been granted (see People v Davis, 81 AD2d 510; People v Rory B., 80 AD2d 643; People v Richard H., 65 AD2d 775; People v Kerr, 43 AD2d 895). However, since the sentence imposed by the court was legally consonant with a youthful offender finding (see Penal Law, §§ 60.02, 60.01, subd 2, par [d]; §§65.00, 85.00), and was • otherwise appropriate under the circumstances, we need not remit for resentencing (People v Kerr, supra). Damiani, J. P., Mangano, Gulotta and Brown, JJ., concur.