People v Perez

People v Perez 2017 NY Slip Op 07228 Decided on October 17, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2017
Tom, J.P., Richter, Andrias, Gesmer, Singh, JJ.
4708 504/09

[*1]The People of the State of New York, Respondent,

v

Julio Perez, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.

Judgment of resentence, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered February 24, 2015, resentencing defendant to an aggregate term of 10 years, with an aggregate term of 5 years' postrelease supervision, unanimously affirmed.

On this Court's remand for resentencing (123 AD3d 592 [1st Dept 2014], lv denied 25 NY3d 1169 [2015]), the court properly exercised its discretion in denying defendant's request for youthful offender treatment. Without a showing of mitigating factors, defendant would be ineligible due to his convictions of armed felonies in this case (see CPL 720.10[2][a][ii],[3]). Defendant's principal claim of mitigation is essentially a justification defense, but on the prior appeal this Court has already found that a justification charge would not have been supported by any reasonable view of the evidence and that counsel was not ineffective for failing to raise such a defense (123 AD3d at 593). The remaining mitigating factors cited by defendant, including his family support, employment history, deportation risk, and lack of a prior record, do not "bear directly upon the manner in which the crime was committed" (CPL 720.10[3][I]). "In any event, regardless of defendant's eligibility, youthful offender treatment was not warranted" (People v Jordan, 143 AD3d 524 [1st Dept 2016], lv denied 28 NY3d 1125 [2016]), in light of the heinousness of the crime, which involved shooting two people, causing extensive injuries to one of them.

We also perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 17, 2017

CLERK