Opinion
December 13, 1984
Appeal from the County Court of Otsego County (Mogavero, Jr., J.).
Defendant pleaded guilty to sexual misconduct in full satisfaction of an indictment for rape in the second degree and was sentenced to a three-year term of probation. On this appeal, defendant argues that County Court should have afforded him youthful offender treatment. After a careful review of the record, we agree.
The record reveals that defendant is of limited mental capabilities and was no more responsible for the sexual encounter for which he was indicted than the young lady involved. The prior offense for which he received youthful offender treatment was minor, apparently involving the theft of a candy bar, and should not stand as a barrier to defendant again receiving youthful offender status. Accordingly, the facts of this case, in our view, warrant that defendant be afforded youthful offender treatment.
Judgment reversed, as a matter of discretion in the interest of justice; conviction vacated and defendant declared to be a youthful offender; and matter remitted to the County Court of Otsego County for sentencing. Kane, J.P., Main, Yesawich, Jr., Levine and Harvey, JJ., concur.