| People v Dorfeuille |
| 2015 NY Slip Op 03199 [127 AD3d 1414] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRoody Dorfeuille, Appellant. |
Richard V. Manning, Parishville, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, ofcounsel), for respondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 22, 2012, which resentenced defendant following hisconviction of the crimes of attempted assault in the first degree and attempted gangassault in the first degree.
Defendant and his codefendants, Darryl Tucker and Jevaughn Francis, were indictedon several charges stemming from their involvement in a violent attack upon the victimduring which they punched, kicked and stabbed the victim several times. Following ajury trial, defendant and Tucker were found guilty of gang assault in the first and seconddegrees and assault in the first and second degrees, and Francis was found guilty ofassault in the second degree. Defendant was sentenced, as relevant here, to concurrentprison terms of 12 years followed by five years of postrelease supervision for both gangassault in the first degree and assault in the first degree. Upon defendant's appeal, wedismissed the counts charging gang assault in the second degree and assault in the seconddegree, reduced the conviction of gang assault in the first degree to attempted gangassault in the first degree and the conviction of assault in the first degree to attemptedassault in the first degree, and remitted the matter for resentencing on those reducedcounts (91 AD3d 1023 [2012], lv denied 19 NY3d 996 [2012]).[FN*] Upon remittal, CountyCourt denied defendant's application for youthful [*2]offender status and resentenced him to an aggregate prisonterm of 11 years followed by five years of postrelease supervision. Defendantappeals.
We are unpersuaded by defendant's contention that County Court abused itsdiscretion in denying him youthful offender status. Initially, to the extent that defendantasserts that the presentence investigation report relied upon by County Court wasincomplete and that the court erred in resentencing him without an updated report, suchclaims are unpreserved for our review inasmuch as defendant failed to request an updatedreport, raise an objection during resentencing or move to vacate the resentence (see People v Brown, 123AD3d 1298, 1299 [2014]; People v Alexander, 110 AD3d 1111, 1111-1112 [2013],lv denied 22 NY3d 1154 [2014]; People v Warriner, 98 AD3d 1190, 1191 [2012]). Indeed,in response to County Court's inquiry, defense counsel specifically indicated that therewas no need for an update of the presentence report. In any event, defendant was givenan opportunity to apprise the court of any pertinent information prior to resentencing (see People v Clark, 80 AD3d1079, 1079 [2011]; Peoplev Kaulback, 46 AD3d 1027, 1028 [2007]).
Addressing the merits of defendant's argument, "[t]he decision to grant or denyyouthful offender status rests within the sound exercise of the sentencing court'sdiscretion and, absent a clear abuse of that discretion, its decision will not be disturbed"(People v Brodhead, 106AD3d 1337, 1337 [2013], lv denied 22 NY3d 1087 [2014] [internalquotation marks and citations omitted]; see People v Daniels, 106 AD3d 1189, 1190 [2013], lvdenied 21 NY3d 1014 [2013]). Here, although defendant was 17 years old at thetime of the incident and had no prior criminal record, County Court placed greatemphasis on the gravity of the crimes and the violent and intentional nature of theconcerted attack by defendant and his codefendants against this unarmed victim. Thecourt also specifically noted defendant's repeated failure to accept responsibility for thecrimes or admit that he had engaged in any wrongdoing. Under these circumstances, wecannot say that County Court abused its discretion in denying defendant's application foryouthful offender treatment (seePeople v Fernandez, 106 AD3d 1281, 1286 [2013]; People v Clark, 84 AD3d1647, 1647-1648 [2011]; People v Francis, 83 AD3d 1119, 1123 [2011], lvdenied 17 NY3d 806 [2011]; People v Driggs, 24 AD3d 888, 889 [2005]).
For the same reasons, we are also unconvinced that defendant's resentence, whichfalls within the permissible statutory range, was harsh or excessive. Contrary todefendant's argument, the mere fact that Tucker received a lesser sentence upon hisconviction of the same crimes (see n, supra) does not warrant a reductionof his sentence (see People vRobinson, 117 AD3d 1099, 1101 [2014], lv denied 23 NY3d 1066[2014]; People v Manley,70 AD3d 1125, 1125 [2010]; People v Fernandez, 30 AD3d 626, 627 [2006]; Peoplev Roberts, 301 AD2d 756, 757 [2003]), particularly since the circumstancessurrounding the sentencing of each were different (see People v Purcell, 8 AD3d 821, 822 [2004]; People vDurrence, 244 AD2d 728, 728 [1997], lv denied 91 NY2d 925 [1998]).
Defendant's remaining claim, that he was denied the effective assistance of counsel atthe resentencing, is without merit.
[*3] Garry,Rose and Lynch, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Tucker's judgment ofconviction was similarly modified by this Court on appeal (People v Tucker, 91 AD3d1030 [2012], lv denied 19 NY3d 1002 [2012]) and, upon remittal, Tuckerwas resentenced to an aggregate prison term of nine years followed by five years ofpostrelease supervision. Francis' conviction of assault in the second degree was affirmed(People v Francis, 83 AD3d1119 [2011], lv denied 17 NY3d 806 [2011]).