State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 103605 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

CLINT R. PETERSON JR.,

Appellant.

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Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L.

Hubbard of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the County Court of Delaware

County (Becker, J.), rendered June 28, 2010, upon a verdict

convicting defendant of the crimes of promoting a sexual

performance by a child and possessing a sexual performance by a

child.

Defendant, then 17 years old, electronically disseminated a

sexually explicit image depicting a prepubescent female child to

an undercover police officer posing as a 13-year-old girl. He

was thereafter charged with promoting a sexual performance by a

child and possessing a sexual performance by a child and,

following a jury trial, was convicted on both counts. County

Court declined to grant defendant youthful offender treatment and

sentenced him to concurrent terms of six months in jail and a 10-
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year term of probation. Defendant appeals. 

Defendant's sole challenge on appeal concerns County

Court's denial of youthful offender status. It is settled that

"[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 McLucas, 58 AD3d 950, 951 [2009];

accord People v Brodhead, 106 AD3d 1337, 1337 [2013], lv denied

22 NY3d 1087 [2014]; see People v Daniels, 106 AD3d 1189, 1190

[2013], lv denied 21 NY3d 1014 [2013]). Factors to be considered

in determining whether to grant youthful offender status include

"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 325,

334 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625

[1986]; accord People v Jeffrey VV., 88 AD3d 1159, 1159 [2011];

People v Ferguson, 285 AD2d 901, 901 [2001], lv denied 96 NY2d

939 [2001]).

In making its determination, County Court took into

consideration several favorable factors, such as defendant's age

at the time of the offense, lack of criminal history, excellent

reputation in the community, humanitarian efforts and cooperation

with police following his arrest by providing a written statement

in which he admitted to possessing and sending the sexually

explicit photograph that ultimately led to the charges against

him. However, County Court was justifiably concerned about not

only the nature of the crimes for which defendant was convicted –

the possession and dissemination of a sexually explicit image

involving a prepubescent child – but also the hundreds of

additional pornographic images of young girls that were

discovered upon a forensic analysis of defendant's computer
-3- 103605 

following his arrest.1 The court appropriately observed that

defendant's possession of the sexually explicit image that formed

the basis of his convictions was not an isolated incident borne

out of "curiosity," and both the preplea and presentencing report

concluded that defendant was being dishonest about the ages of

the children in the photographs that he was viewing and whether

he had saved any of the images that he had received. 

In addition, County Court relied upon the negative

recommendation of the Probation Department as set forth in the

presentence report, which noted defendant's lack of remorse and

failure to accept responsibility for his actions. Also

supportive of the court's denial of youthful offender treatment

is defendant's failure to obtain a court-ordered mental health

evaluation on the basis that, among other claimed reasons, he

"[did] not believe that he need[ed] treatment." While defendant

strongly argues that his conduct should be viewed merely as

youthful "sexting" rather than criminal conduct, he does not

challenge any of the aforementioned factors or dispute the fact

that he engaged in conduct that constituted the crimes for which

he was convicted. Under the circumstances presented here, we

find no abuse of County Court's discretion in refusing defendant

youthful offender status, nor do we discern any reason to grant

youthful offender treatment in the interest of justice (see

People v Fernandez, 106 AD3d 1281, 1286 [2013]; People v Clark,

84 AD3d 1647, 1647-1648 [2011]; People v Terpening, 79 AD3d 1367,

1368 [2010], lv denied 16 NY3d 837 [2011]; People v Driggs, 24

AD3d 888, 889 [2005]; compare People v Jeffrey VV., 88 AD3d at

1 Contrary to defendant's contention, County Court acted

well within its discretion in considering the forensic report for

sentencing purposes. The report, which was prepared by an

investigator who had completed hundreds of hours of training in

computer forensics and had conducted similar forensic analyses in

over 20 cases, was shown to be reliable and accurate and defense

counsel had the opportunity to review and respond to it (see

People v Hansen, 99 NY2d 339, 345 [2003]; People v Massmann, 13

AD3d 808, 809 [2004]; People v Mason, 299 AD2d 724, 726 [2002],

lv denied 100 NY2d 564 [2003]; People v Baker, 292 AD2d 644, 645

[2002], lv denied 98 NY2d 635 [2002]).
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1159-1160).

Lahtinen, Garry and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court