
    The People of the State of New York, Respondent, v Lyman HH., Appellant.
    [626 NYS2d 327]
   Mikoll, J. P. Appeal from a judgment of the County Court of Washington County (Hemmett, Jr., J.), rendered November 10, 1993, convicting defendant upon his plea of guilty of the crime of incest.

On this appeal, defendant requests that this Court grant him youthful offender status or, in the alternative, a reduction of the sentence imposed of 1 to 3 years’ imprisonment. He contends that County Court abused its discretion in denying him youthful offender status.

While we cannot say that the denial of defendant’s application for youthful offender treatment was an improvident exercise of discretion, nonetheless we choose, in the interest of justice, to vacate the conviction and adjudicate defendant a youthful offender. The relevant facts justify such intercession where, as here, defendant was 16 years old when the offense was committed; the acts were consensual in nature; the victim, defendant’s niece, then 13 years of age, was reluctant to prosecute and expressed the feeling that defendant should not be prosecuted; the acts involved were in the nature of youthful sexual exploration; there was no force or intimidation involved; defendant is of limited educational and mental aptitude and has no prior criminal record.

For all these reasons, we opt to exercise our discretion in granting defendant youthful offender status. The ends of justice will be served by relieving defendant from the onus of a criminal record (see, People v Drayton, 39 NY2d 580; People v Andrea FF., 174 AD2d 865, 866-867; People v Cruickshank, 105 AD2d 325, 334, 335, affd sub nom. People v Dawn Maria C., 67 NY2d 625).

Crew III, and Yesawich Jr., JJ., concur.

Mercure, J. (dissenting). Because we are not persuaded that there exist compelling circumstances justifying our exercise of interest-of-justice jurisdiction (compare, People v Andrea FF., 174 AD2d 865), we would affirm.

Peters, J., concurs. Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, conviction vacated, defendant is declared to be a youthful offender and matter remitted to the County Court of Washington County for resentencing.  