People v. Davis

— Judgment, Supreme Court, Bronx County, rendered December 14, 1979, convicting defendant of assault in the first degree and sentencing him to an indeterminate term of IV2 to AV2 years, unanimously reversed, on the law, defendant’s application for youthful offender treatment granted, the conviction for assault in the first degree deemed vacated and replaced by a youthful offender finding, and the matter remanded for sentence. Defendant, 16 years of age at the time of the commission of the crime, pleaded guilty to assault in the first degree in that under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of death to another and thereby caused serious personal injury to another (Penal Law, § 120.10, subd 3). The charge arose out of the accidental shooting of a next door neighbor who was only 12 years of age. The incident was the culmination of a game in which defendant and two other youngsters, including the victim, had participated. Defendant had found the gun earlier that day, presumably in his sister’s apartment. GPL 720.10 (subd 3) (as amd L 1978, ch 481, § 59, eff Sept. 1, 1978) provides for youthful offender treatment for eligible youths who are convicted of armed felony offenses when, inter alia, mitigating circumstances “bear directly upon the manner in which the crime was committed”. In our opinion this is one such case. The shooting was hasty and thoughtless, rather than intentional or calculated. As the presentence report noted, defendant’s action reflected “a lack of insight and judgment.” Accordingly, we determine defendant to be a youthful offender and remand for sentence. Concur — Murphy, P. J., Sandler, Sullivan and Fein, JJ.