Before the Court is the application of the defendant upon re-sentencing to be adjudicated a youthful offender (“Y.O.”) upon his plea of guilty to manslaughter in the first degree. CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, “…at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.”The original sentence imposed by Judge Weber was twenty five years. That sentence was reduced to twenty years by the Appellate Division First Department on the basis that the original sentence was too severe.Now the defendant seeks to “clear the slate” by a determination that he is eligible for and deserving of being adjudicated a Y.O.Youthful offender adjudication is governed by CPL article 720. Under the New York procedure in effect since 1971, youthful offender status is resolved at sentencing, after guilt for the crime has been determined either by guilty plea or trial. If youthful offender status is granted, the conviction is “deemed vacated and replaced by a youthful offender finding” (CPL 720.20 [3]). That finding brings with it certain advantages, including a four-year limit on the maximum sentence that can be imposed in a felony case (CPL 720.20 [1] [a]; [3]; PL 60.02 [2]; 70.00 [2] [e]), the sealing of records relating to the prosecution, and the avoidance of disabilities that might otherwise result from a conviction, including disqualification from public office and public employment (CPL 720.35).At the time of the crime on or about May 14, 2009, the defendant was 16 years old. He had never been convicted of a crime. He was arrested for the crime on or about April 14, 2010. Indicted for murder, he pleaded guilty to manslaughter. Mr. Messina, the victim, was stabbed and died as a result of the injury inflicted by Mr. M. Apparently the reason according to Mr. M for the knife attack on the victim, a homeless man sitting on M’s stoop was because he saw the homeless man touch Mr. M’s ex-girlfriend as she passed the man. He claimed he found a kitchen knife on the floor and stabbed the man. He stated that after he stabbed him once he blacked out and did not recall stabbing him the other two times. He regretted it at the time for taking it too far, as he said. A week later he discarded the clothes with the dead man’s blood stains on them.At the sentencing his lawyer indicated that he believed that the defendant might be bi-polar. He has had anger and control issues none of which were addressed leading up to this situation. The lawyer stated that Mr. M has always been up front about his guilt, at least since the day of his arrest. He has always been remorseful and sorry that he caused the pain and anguish to the Messina family which was on display at the sentencing. His lawyer called the 25 year sentence a stiff and fair price.At sentencing the defendant apologized to Mr. Messina’s family and his own family. He called it a mistake, “I didn’t mean to. I regret it. I wasn’t thinking that day. Everything was going emotionally for me that day.” The sentencing judge stated that he would be in jail longer than he had been alive and gave him the 25 years.The plea to 25 years was a negotiated plea that the Appellate Division thought was too harsh. So do I.The issue now is what is an appropriate sentence given the ability of hindsight of almost ten years. Changes in the law, awareness of the issues attendant adolescent offenders, evidence of the consequences of crack addicted babies, familial neglect and other traumatic attacks on the life of a child undermine resilience all factor in as never before. Further the physiology of anger, damage done to the plasticity of the brain of a child by repeated traumatic events and encounters — all demonstrate that the acts of a 16 year old with poor if negligible impulse control cannot be remedied by incarceration for longer than they have been alive.Teenagers are still responsible for their own actions. They are capable of making rational decisions. Society’s understanding of juvenile brain function and the relationship between youth and unlawful behavior has significantly evolved. Parts of the brain involved in behavior control continue to mature through late adolescence. Sociological studies establish that young people often possess “an underdeveloped sense of responsibility,” which can “result in impetuous and ill-considered actions and decisions.” Johnson v. Texas, 509 US 350, 367 (1993).With due deference and care to the victims of youth violence a court needs to be solicitous of the interests of vulnerable youth, where guilt is determined in the context of a criminal justice system designed for adults. Young people who find themselves in the criminal courts are not comparable to adults in many respects — and sentencing should reflect that fact. The Raise the Age movement and the legislation has embodied in our law many of these values.The statute permits a finding of youthful offender status if “the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years” (CPL 720.20, subd 1, par [a]). The 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. Drayton, 39 NY2d 580, 584 (1976).While the statute does not set forth any specific criteria to be considered upon an application for youthful offender status, a review of pertinent case law indicates that the factors to be considered include:1. the gravity of the crime and manner in which it was committed,This weighs against the defendant-3 stabbings of an unarmed homeless man because of an imagined slight.2. mitigating circumstances,This weighs in favor of the defendant but only to the extent that he was rescued by the Delgado family and it did not adjust the defendant’s behavior.3. defendant’s prior criminal record,He had none.4. prior acts of violence,There are none reported and it is reasonable to believe none existed.5. recommendations in the pre-sentence reports,The probation report is useless as they often are. The report prepared by defense counsel with the defendants’s own statement and that of his adopted mother and the social evaluation militate for Y.O.6. defendant’s reputation,There is no evidence of this being relevant except that it is not for violence.7. the level of cooperation with authorities,He was arrested and only then did he cooperate, confessing repeatedly and pleading guilty.8. defendant’s attitude toward society and respect for the law,The issue is then or now. It appears that the time in prison coupled with the appropriate aging of his brain has altered his attitude. He has adjusted successfully to life in prison. He has also done much to advance his return to society and to be a productive member of society. His support system remains. With the emergence out of adolescence into adulthood his attitude too has emerged as positive, measured and responsible.9. the prospects for rehabilitation and hope for a future constructive life,Unlike many without a full support system, a re-entry program that has been successful and evidence that he has been rehabilitated by maturation, if not incarceration or the combination of the two, provide a sense of bright prospects for a future constructive life.The case starts not with the stabbing death of Mr. Messina, but even before the birth of Mr. M to a crack addicted mother. Poisoned in utero, he was in all likelihood affected neurologically by the substances his biological mother used during her pregnancy with him. It’s not unusual for such children to develop so-called neuro-behavioral disorders, i.e., dysfunction of behavior that has its origin in damage to the central nervous system. In particular, impulsivity and emotional dyscontrol can typify such youngsters.Once born, he had to immediately de-tox, sending the infant brain into withdrawal. From a physiological and anatomical perspective, a child’s brain is extremely malleable during the early years of life. The plasticity of a child’s central nervous system leads the human brain to be dramatically affected by early experiences. The conditions of his rearing by his biological family heightened levels of stress and overstimulation of certain brain structures, which can lead to chemical imbalances in the child’s brain and to abnormal development of neurological and cerebral systems.Children are also in the critical stages of their emotional and cognitive development. Their identity is not yet formed, their personality traits are in transitory stages, and they are less mentally stable than adults. His home situation interrupted the delicate and complex process of maturation, appeared to have affected the timing of developmental trajectories, and disrupted his progression through age-appropriate milestones. This state of psychological immaturity also makes it difficult for children to process and cope with trauma without assistance. Children are at increased risk that damage caused by exposure at this delicate developmental stage will become permanently embedded in their core personality structure.The human brain is made up of neuronal connections, a wiring system if you like, which makes connections between cells to communicate across the brain. Synapses within the brain are the connections between brain cells and are contained within the grey matter of our brains. Recent research has included longitudinal studies of children from childhood through to early adulthood. Using MRI scanning technology a picture of their brain development as they grow and get older was able to be compiled. What this research told us was that the levels of grey matter in the brain initially increases during early childhood and then decreases during adolescence.When the brain is developing in early adolescence there is a process of ‘pruning’ where the grey matter and connections which are weak or unused are ‘pruned’ back to make way for faster more efficient connections moving into adulthood. Furthermore, where the grey matter recedes, the white matter increases as new connections are covered in a protective myelin sheath to protect them in the future.This action also begins the processes required for intricate chains of connections to be made which are needed for the more complex cognitive processes such as problem-solving which we need as adults. These processes and the maturing of the brain occurs from the back of the brain to the front of the brain which means the frontal cortex and frontal lobes of the brain are the last to fully mature.A study by Nitin Gogtay and colleagues from the National Institute of Mental Health, monitored children through MRI studies every 2 years from the ages of 4 to 21 years old measuring the physical change in brain tissue as a child gets older. This research highlighted the back-to-front process of brain maturation showing the frontal lobes were the last to mature. These changes continued up to the age of 21 years, the oldest individuals studied in the research, suggesting maturation may even continue after this age.This is important as these are the areas which are in control of our emotions, impulses, high-level reasoning and decision-making and notably are the areas most often associated with criminal behavior. This is the reason these skills in teenagers can often be weak. They do not necessarily think of the consequences of their actions and they may not think decisions through fully. They can act more impulsively and partake in risky behavior as a result.One psychologist, Laurence Steinberg describes it as “a well-developed accelerator but only a partly developed brake.”The frontal lobe of the brain can be thought of as the control and organization center where information from other areas of the brain is monitored and a reaction is decided upon. As children develop through adolescence this area reorganizes how it deals with information coming from other parts of the brain, becoming better at putting the brakes on raw emotional responses where necessary.Teenagers, of course, are still responsible for their own actions. While the adolescent brain, we now know, is different from both a child’s and an adult’s brain, teenagers are quite capable of making rational decisions. However, these vulnerabilities can make them more prone to risky impulsive behaviors compared to a young adult in their early 20′s. Moreover, they can be easily influenced and are more susceptible to peer pressure than an adult is.The limbic system is another area of the brain heavily involved in emotional behavior. It is a section deep within our brain structure and is associated with instinct and immediate reactions such as fear and anger. The frontal lobes of the brain are where these reactions are tamed to ensure our response is proportionate and appropriate for the situation we are in and the response is considered in terms of consequences.In a teenage brain, this halting system is not fully developed, this is why extremes of behavioral changes occur at the drop of a hat. Apply this to the outside world with social pressures and environmental influences and you can run into problems.Before ‘pruning’ takes place in the brain, a teenager’s mind is a jumble of thoughts, reactions, emotions and responses and they do not have the control we adults do over organizing and keeping track of them through the frontal lobes. This results in the kind of behavior we can typically see from teenagers and means they cannot access the experiences and emotions inside their brain which may temper such responsive and impulsive behavior, as easily as we can. See https://www.crimetraveller.org/2015/06/teenage-brain-development/.In Roper v. Simmons, 543 US 551 (2005), the Court’s majority through Justice Stevens highlighted what we have learned: Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions….Adolescents are over represented statistically in virtually every category of reckless behavior.” Roper at 569 (citations omitted).Even the normal 16–year–old customarily lacks the maturity of an adult. In recognition of the comparative immaturity and irresponsibility of juveniles, almost every state prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. The life and times of Mr. M demonstrate that he was never really given the chance to be “normal.” The efforts of the Delgado family, heroic and exceptional were only able to defer the consequences of the life led before they fully adopted him into their home. And as loving and supportive as they were, they could not alter the trauma of the before life or undo the effects of such a life and its impact on the adolescent and adversely affected brain. Even if he were normal, this crime, one of impulse and possibly misplaced gallantry, was an act so impulsive and so rageful as to defy any explanation.The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These differences render suspect any conclusion as to how a juvenile falls among offenders for sentencing purposes. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 US 815, 835 (1988)(plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. The signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Johnson v. Texas, supra, at 368; see also Steinberg & Scott 1014 (“For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood”).SENTENCINGGenerally, four principles have been accepted as objectives of criminal punishment: deterrence; rehabilitation; retribution; and isolationIn setting sentence the trial judge should be guided not only by the four objectives of punishment, but also by the criterion that a minimum amount of confinement should be imposed consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. It is the sensitive balancing of these objectives and criteria in the individual case that makes the process of sentencing the most difficult and delicate decision that a judge is called upon to perform.The proper imposition of sentence is probably the most difficult problem with which a trial judge is faced. The difficulty is not alleviated by the insistence of those who believe, simplistically, that long and severe sentences will provide the panacea for burgeoning crime. A sentence must be fashioned strictly ad hominem, based almost entirely on how society will probably be affected by the strictures placed on the activities of a particular defendant. The process must take into account several factors: the rehabilitative, which is self-explanatory; the incapacitative, not here applicable; the deterrent effect upon him, as well as upon others who may be inclined toward criminal activity; and the vindictive, i.e., the measure of punishment to be inflicted upon the defendant by way of retribution for the transgression involved. It would, of course, be far easier to couple a particular punishment automatically with a particular crime, but such a sentence, completely ignoring the stated factors, would not, in most instances, be beneficial to society.The court must weigh the demands of the community for punishment against the individual posture of the defendant. Each case differs, and no case is necessarily a precedent for the next, except to the extent that disparity in the treatment of individuals similarly situated should be avoided. Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the state’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.Agreement as to the societal objectives of punishment in the abstract is generally shared; the problem before the courts in obtaining those objectives springs not only from the relative priority to be attached to each objective but also in the temperament, mental and physical condition, past social history, and economic circumstances of the individual defendant.All of the criteria discussed above militate in defendant’s favor except the serious nature of the crime of which he was convicted. While this is an important factor, the Legislature, by making youthful offender treatment available for a conviction of first degree manslaughter, has determined that this factor alone does not mandate denial of such treatment. People v. Cruickshank, 105 AD2d 325 (3rd Dept. 1985).Youthful offender status “permits the court to mete out fair punishment for a young adult’s crimes and transgressions yet mitigates future consequences in recognition of, inter alia, the youth’s lack of experience and the court’s hope for his future constructive life.” People v. Gordon S., 89 AD2d 912, 913 (2nd Dept. 1982).THE SENTENCEAccordingly, defendant is adjudicated a youthful offender. The sentence is 1 1/3-4 years, which is in effect time served (defendant has been incarcerated since April 14, 2010). He should have and continue necessary counseling. All fees have previously been paid.This constitutes the decision and order of the Court.Dated: April 10, 2019
