| People v Crawford |
| 2008 NY Slip Op 07375 [55 AD3d 1335] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrandonCrawford, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered August 23,2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [former (2)]), defendantcontends that County Court abused its discretion in refusing to afford him youthful offender status. Wereject that contention. Defendant, who was not the sole participant in the crime, was convicted of anarmed felony (see CPL 1.20 [41] [a]), and thus he was eligible to be adjudicated a youthfuloffender only if the court found "mitigating circumstances that bear directly upon the manner in whichthe crime was committed . . . or . . . [that] defendant's participation wasrelatively minor although not so minor as to constitute a defense to the prosecution" (CPL 720.10 [3];see CPL 720.10 [2] [a] [ii]). "Here, the defendant offered the sentencing court no evidence ofmitigating circumstances relating to the manner in which the subject [crime was] committed, and his rolein the [crime] was not minor. Accordingly, he could not be adjudicated a youthful offender" (Peoplev Jhang, 302 AD2d 606, 606-607 [2003]; see People v Fields, 287 AD2d 577, 578[2001], lv denied 97 NY2d 681 [2001]; People v Boyd, 254 AD2d 740, 741[1998], lv denied 92 NY2d 1047 [1999]).
Defendant further contends that the court considered inaccurate or improper information insentencing him. Even assuming, arguendo, that defendant's contention is preserved for our review, weconclude that it lacks merit. " 'Generally, as a matter of due process, an offender may not be sentencedon the basis of materially untrue assumptions or misinformation,' and the sentencing court must beassured 'that the information upon which it bases the sentence is reliable and accurate' " (People v Vaughan, 20 AD3d 940, 941[2005], lv denied 5 NY3d 857 [2005], quoting People v Naranjo, 89 NY2d 1047,1049 [1997] [internal quotation marks omitted]). Contrary to the contentions of defendant, the recordestablishes that the court corrected itself before considering evidence of unindicted offenses, and [*2]the record supports the court's determination that defendant's level ofcooperation in the trial of an accomplice was insufficient. The prosecutor indicated that he did not calldefendant as a witness in that trial because defendant refused to detail his own involvement in the crimesand thus lacked credibility. That statement is supported by the statement of defendant during apresentence interview that he "did not do anything" on the night of the crime. Further, in sentencingdefendant, the court properly considered his role in the intimidation of witnesses before the trial of theaccomplice. The judge presiding over defendant's prosecution also presided over the prosecution of theaccomplice (People v McCallar, 53AD3d 1063 [2008]) and, in the course of that prosecution, the court held a Sirois hearingand determined that members of a gang with which defendant was associated had intimidated variouswitnesses. We take judicial notice of the record from the accomplice's appeal (see People v Hill,30 AD2d 976 [1968]), and conclude that the information relied upon by the court in sentencingdefendant was reliable and accurate.
Defendant failed to preserve for our review his contention that the conviction is not supported bylegally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]; see also People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]) and, in any event,that contention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Finally, the verdict is not against the weight of the evidence (see generally id.).Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.