Procedural History On May 7, 2002, defendant, who was sixteen years old1 at the time, was arrested and charged with, inter alia, Assault in the First Degree (Penal Law §120.10), a class B violent felony offense. The complaint alleged that on May 7, 2002, in Queens County, defendant and complainant, J.N., engaged in a fight. During the fight defendant stabbed the complaint twice with a knife, once in the complainant’s rear left shoulder and once in the left side of the complainant’s chest, near his rib cage. The complainant was admitted to a local Queens hospital where he received treatment for stab-wounds, including treatment for a stab-wound that punctured his lung and caused his lung to collapse2. On August 5, 2002, defendant waived indictment and pled guilty to Reckless Endangerment in the First Degree (Penal Law §120.25), a class D nonviolent felony offense. On September 5, 2002, before the Hon. Dorothy Chin-Brandt, defendant was sentenced upon his guilty plea to an indeterminate prison term of from two and one-third to seven years, to be followed by two and one-third years of post-release supervision, with an explicit understanding that defendant would not receive youthful offender treatment (sentencing tr at 14). Defendant was released from prison to parole on April 3, 2007, and received an early discharge from parole on May 12, 2008. A review of defendant’s rap sheet reveals that he has no other arrests or convictions. In 2013, defendant was granted a Certificate of Relief from Disabilities. Now, in the instant applications, defendant has moved for retroactive youthful offender treatment pursuant to CPL 720.20 (5), or, in the alternative, to seal his judgment of conviction pursuant to CPL 160.59. The People have submitted opposition papers, opposing defendant’s applications in their entirety, and asking the Court to conduct a hearing as required by CPL 160.59(6) and permitted by CPL 720.20 (5) (c). The matter was calendared in Queens County Supreme Court, Part W50, on July 19, 2022, and a hearing with respect to both of defendant’s applications was conducted “in order to consider any evidence offered by either party that would aid the [Court] in [rendering its] decision” (CPL 160.59 [6]). The defense called one witness at the hearing, the defendant, and the People did not call any witnesses. This Court finds defendant’s testimony credible, but, considered in conjunction with defendant’s moving papers and without more, insufficient to meet his burden for the Court to grant the requested relief. Application for Retroactive Youthful Offender treatment (CPL 720.20 [5]) Section 720.20 (5) (a) permits a defendant “who was an eligible youth” at the time of his offense but who was not adjudicated a youthful offender by the sentencing court, to apply for retroactive youthful offender treatment when, inter alia, “at least five years have passed since” the defendant’s “latest release from incarceration” as long as the defendant “has not been convicted of any new crime since the imposition of such sentence” (CPL 720.20 [5] [a]). The Court notes that the People do not contest defendant’s eligibility for relief under CPL 720.20 (5), as defendant was an “eligible youth” in 2002, at the time of his conviction, and was released from incarceration in 2007 and discharged from parole fourteen years ago, in 2008. Moreover, defendant’s waiver of youthful offender treatment as part of his plea does not render him ineligible for the instant relief that he seeks under this statute (see People v. Rudolph, 21 NY3d 497, 499 [2013] [the sentencing court "must" determine whether defendant should be treated as a youthful offender, "even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request."]). CPL 720.20 (5) (b) provides the court with factors that shall be considered in determining whether to grant youthful offender status, and CPL 720.20 (5) (c) permits the court to conduct a hearing to determine a defendant’s application made pursuant to CPL 720.20 (5) (a). Ultimately, “[t]he determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v. Ortega, 114 AD2d 912 [2d Dept 1985]; see also People v. Marcel G.,183 AD3d 667 [2d Dept 2020]). In the People’s affirmation in opposition to defendant’s applications, they oppose defendant’s application for retroactive youthful offender treatment. The People cite, as factors that the Court should weigh heavily, the manner in which the crime was committed and defendant’s role in the crime which resulted in the conviction (see CPL 720.20 [5] [b] [ii], [iii]). Moreover, at the July 19, 2022 hearing to determine defendant’s applications, the People acknowledged that defendant’s progress since his release from prison has been laudable, but argue that defendant’s conviction has not held him back or prevented him from being successful (tr at 36; see CPL 720.20 [5] [b] [i] ["whether relieving the individual from the onus of a criminal record would facilitate rehabilitation and successful reentry and reintegration into society"]). Here, having considered the factors enumerated in CPL 720.20 (5) (b) as they apply to this case, this Court finds that defendant has failed to offer any evidence that the relief sought is necessary to “facilitate rehabilitation and successful reentry and reintegration into society” (CPL 720.20 [5] [b] [i]). To the contrary, as defendant testified at the hearing, defendant’s conviction did not impede him from being admitted into Queensborough Community College, or matriculating in Queens College where defendant made the dean’s list and participated in an honors program, or getting a job with an accounting firm after college, or even obtaining defendant’s current position as a senior portfolio manager for Douglas Elliman Property Management Group (tr at 11, 18-19). Defendant testified at the hearing that his conviction has limited his professional growth, specifically that he did not take an opportunity that was presented to him because it would have required him to file a U4, a form that FINRA uses to obtain background information such as employment and disciplinary history (tr at 12). This amounts to mere speculation as defendant admitted he did not pursue this opportunity. Defendant described his situation, as it relates to his criminal record, as “a continuous prison sentence” (tr at 15). It is the opinion of this Court, however, that this particular prison is of defendant’s own construction (separate and apart from the actual term of imprisonment that defendant served as a result of his conviction); defendant’s fear of what might happen as a result of disclosing his criminal history is preventing defendant from even attempting to grow professionally. Had defendant filed the U4 and failed to obtain an employment opportunity as a direct result of his background check revealing the instant conviction, it could certainly be argued that the conviction has provided an actual impediment to his professional growth. That simply has not happened, leaving this Court to speculate as to whether there are actual consequences of defendant’s instant conviction impeding defendant’s life. The Court also notes that defendant’s role in the offense, and the manner in which it was committed, a knife attack by the defendant during a fistfight that left the complainant hospitalized with life-threatening injuries, cannot be overlooked (see CPL 720.20 [5] [b] [ii], [iii]). While it is hardly in dispute that defendant’s post-conviction accomplishments are laudable, this Court is unwilling to disturb the negotiated disposition that was accepted by the plea court where defendant was permitted to enter a guilty plea to a class D nonviolent felony offense, Reckless Endangerment in the First Degree (Penal Law §120.25), with the explicit understanding that defendant would not receive youthful offender treatment, when defendant was facing the far more serious charge of Assault in the First Degree (Penal Law §120.10), a class B violent felony offense. Accordingly, having considered “all [of] the attending facts and circumstances of the case” (People v. Ortega, 114 AD2d 912) and the factors enumerated in CPL 720.20 (5) (b), defendant’s application for retroactive youthful offender treatment is denied. Application for Sealing (CPL 160.59) CPL 160.59 (2) (a) provides that a defendant who has been convicted of up to two “eligible offenses,” but not more than one felony offense, may apply to the court to have such convictions sealed. “The statute, inter alia, defines ‘eligible offense’ (CPL 160.59 [1] [a]), sets forth requirements for the defendant’s application to the court (see CPL 160.59 [2] [b]), and provides when the reviewing court must summarily deny the defendant’s application (see CPL 160.59 [3])” (People v. Shrayef, 936 [2d Dept 2020]). “Where the defendant meets the requirements of CPL 160.59, the decision of whether to seal an eligible offense is within the sound discretion of the court” (id.; see CPL 160.59 [4], [7]). Here, it is undisputed that defendant’s conviction of Reckless Endangerment in the First Degree is eligible for sealing. However, upon consideration of “the nonexhaustive relevant factors identified in CPL 160.59 (7)” (People v. Shrayef, 181 AD3d at 936), which factors largely overlap with those enumerated in CPL 720.20 [5] [b], in this Court’s discretion, defendant’s application for sealing is denied, with leave to renew pursuant to CPLR 2221. In addition to “the circumstances and seriousness of the offense for which the defendant is seeking relief” (CPL 160.59 [7] [b]), which this Court has also considered as it applies to defendant’s application for retroactive youthful offender treatment, the “statements made by the victim of the offense for which the defendant is seeking relief” (CPL 160.59 [7] [e]) carry significant weight in this Court’s determination on the instant sealing application. The victim, J.N., provided both oral and written statements before the sentencing court and “vehemently opposed not only youthful offender treatment, but even the mere recommendation that defendant be accepted to the SHOCK program” (Affirmation of People, at 14-15). J.N. expressed his sincere displeasure with the disposition, indicating that defendant should have been required to plead guilty to attempted murder (sentencing tr at 5). The only statements made by the victim that are part of the court record strongly suggest that the victim would absolutely oppose sealing of the instant conviction. Defendant, in his sworn affidavit in support of his applications, dated May 11, 2022, expressed remorse for his actions and outlined what he would say to the victim to convey this remorse if given the opportunity. Noticeably absent from this affidavit was any mention of direct contact between defendant and the victim, much less an apology from defendant to the victim that was met with an expression of forgiveness. At the July 19, 2022, hearing to determine the same applications, however, defendant, for the first time, provided sworn testimony in which he indicated that approximately four or five years ago, the victim contacted defendant via a Facebook message, that defendant expressed his remorse and apologized to the victim, and the victim accepted the apology. At no time was any evidence offered by defendant to corroborate this conversation, apology, and alleged forgiveness. Such corroboration may have been very persuasive to this Court. This Court finds that defendant’s unsupported testimony regarding the victim’s statements and his purported forgiveness of defendant during their alleged Facebook interaction is insufficient evidence to overcome the statements provided by the victim at sentencing. The victim sustained life-threatening injuries and severe disfiguring scarring and understandably was quite upset at the original plea bargain and proposed sentence. As such, for purposes of considering “statements made by the victim of the offense for which the defendant is seeking relief” (CPL 160.59 [7] [e]), the Court relies on the statements provided by the victim at sentencing. Accordingly, defendant’s instant motion for sealing pursuant to CPL 160.59 is denied with leave to renew his motion, so long as it is “based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]). This constitutes the decision and order of the Court. Dated: July 28, 2022
