| People v Jones |
| 2018 NY Slip Op 07556 [166 AD3d 1479] |
| November 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jahari Jones, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered February 22, 2013. The appeal was held by this Court by order enteredNovember 9, 2017, decision was reserved and the matter was remitted to Supreme Court,Onondaga County, for further proceedings (155 AD3d 1547 [2017]). The proceedingswere held and completed.
It is hereby ordered that the judgment so appealed from is modified as a matter ofdiscretion in the interest of justice by directing that all of the sentences shall runconcurrently and as modified the judgment is affirmed.
Memorandum: We previously held this case, reserved decision, and remitted thematter to Supreme Court (Brunetti, A.J.) to make and state for the record a determinationof whether defendant is a youthful offender (People v Jones, 155 AD3d 1547[4th Dept 2017], amended on rearg 156 AD3d 1493 [4th Dept 2017]; see generally People vMiddlebrooks, 25 NY3d 516, 525-527 [2015]; People v Rudolph, 21 NY3d497, 499-501 [2013]). Upon remittal, the court (Cuffy, A.J.) determined thatdefendant, who had been convicted of the armed felony offenses of assault in the firstdegree (Penal Law § 120.10 [1]) and two counts of criminal possession of aweapon in the second degree (§ 265.03 [3]), was not a minor participant inthe crimes and that there were no mitigating circumstances bearing directly on themanner in which the crimes were committed. Consequently, the court concluded thatdefendant was not an eligible youth and denied his request for youthful offendertreatment. We conclude that the court did not thereby abuse its discretion (seegenerally Middlebrooks, 25 NY3d at 526-527; People v Garcia, 84 NY2d336, 342-343 [1994]).
CPL 720.10 (3) provides that "a youth who has been convicted of an armed felonyoffense . . . is an eligible youth if the court determines that one or more ofthe following factors exist: (i) mitigating circumstances that bear directly upon themanner in which the crime was committed; or (ii) where the defendant was not the soleparticipant in the crime, the defendant's participation was relatively minor although notso minor as to constitute a defense to the prosecution." Contrary to defendant'scontention, "traditional sentencing factors, such as the criminal's age, background andcriminal history, are not appropriate to the mitigating circumstances analysis. . . Rather, the court must rely only on factors related to the defendant'sconduct in committing the crime, such as a lack of injury to others or evidence that thedefendant did not display a weapon during the crime" (People v Victor J., 283AD2d 205, 206 [1st Dept 2001], lv denied 96 NY2d 942 [2001] [internalquotation marks omitted]), or other factors that are directly related to the crime of whichdefendant was convicted (see People v Cruickshank, 105 AD2d 325, 334-335 [3dDept 1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]). Here,we perceive no basis to disturb the court's determination that defendant is not an eligibleyouth because, in the first crime of which he was convicted, "defendant carried a gun to[*2]an encounter with known gang members, displayedthe gun, . . . and . . . fired a shot that struck one of the" gangmembers (People v Flores,134 AD3d 425, 426 [1st Dept 2015], lv denied 29 NY3d 948 [2017]), and hewas again armed with a loaded weapon when he was arrested several weeks later.
Although the court did not abuse its discretion in sentencing the 18-year-olddefendant as an adult, we agree with defendant that the sentence imposed, an aggregatedeterminate term of imprisonment of 35 years, is unduly harsh and severe under thecircumstances of this case. It is well settled that this Court's "sentence-review power maybe exercised, if the interest of justice warrants, without deference to the sentencing court"(People v Delgado, 80 NY2d 780, 783 [1992]), and that "we may 'substitute ourown discretion for that of a trial court which has not abused its discretion in theimposition of a sentence' " (People v Johnson, 136 AD3d 1417, 1418 [4th Dept 2016],lv denied 27 NY3d 1134 [2016]; see People v White, 153 AD3d 1565, 1568 [4th Dept2017], lv denied 30 NY3d 1065 [2017]).
The victim in this case is a rival gang member who attempted to rob members ofdefendant's gang. Defendant arrived at the scene of the attempted robbery and shot at thevictim, who was struck by a bullet but survived. Defendant obviously deserves a sternsentence but, in our view, 35 years is too severe. Indeed, the maximum punishment forintentional murder is 25 years to life (see Penal Law § 70.00 [2] [a];[3] [a]). Defendant has no prior criminal record (he was adjudicated a youthful offenderon a misdemeanor), he was only 18 years old when he committed the crimes, and thePeople offered him a 20-year sentence prior to trial as part of a plea bargain. Under thecircumstances, and considering that the victim was attempting to commit an armedrobbery when he was shot, we conclude that defendant's sentence is unduly harsh andsevere.
We therefore modify the judgment as a matter of discretion in the interest of justiceby directing that all of the sentences run concurrently (see CPL 470.15 [6] [b]).The sentence, as modified, will result in an aggregate determinate sentence of 25 years,which will protect the public from defendant for more than two decades and is sufficientto deter others from engaging in similar conduct.
All concur except Smith, J.P., and Winslow, J., who dissent in part and vote to affirmin the following memorandum.
Smith, J.P., and Winslow, J. (dissenting in part). We agree with the majority that no"mitigating circumstances that bear directly upon the manner in which the crime wascommitted" exist in this case (CPL 720.10 [3] [i]), that defendant was not a relativelyminor participant in the crimes (see CPL 720.10 [3] [ii]), and that Supreme Courttherefore did not abuse its discretion in denying defendant's request for a youthfuloffender adjudication (seegenerally People v Middlebrooks, 25 NY3d 516, 526-527 [2015]; People vGarcia, 84 NY2d 336, 342-343 [1994]; People v Victor J., 283 AD2d 205,206 [1st Dept 2001], lv denied 96 NY2d 942 [2001]). We disagree, however,with the majority's determination to reduce the sentence. Consequently, we dissent in partand vote to affirm.
Defendant's conviction arose from two incidents that occurred within a period ofseveral weeks. Both incidents took place in a neighborhood that defendant's gangmembers considered to be their territory, and both were related to gang activities. Withrespect to the first incident, the jury found defendant guilty of assault in the first degree(Penal Law § 120.10 [1]) and criminal possession of a weapon in thesecond degree (§ 265.03 [3]) for the shooting of a member of a rival gangduring a gang battle in the City of Syracuse on Christmas Eve. The jury necessarilyconcluded that defendant caused the rival gang member to sustain serious physical injury.The evidence at trial also establishes that defendant was armed with a .380 caliberhandgun and that he began firing it immediately upon arriving in the area. Numerousshots were fired by defendant and others, and some of the bullets struck nearbyhouses.
The second incident occurred several weeks later, within a few blocks of the site ofthe Christmas Eve shooting, and resulted in defendant's conviction of another count ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]). A Syracuse police officer stopped defendant and other gang members, and a searchrevealed that defendant possessed a .380 caliber handgun. The officer had been lookingfor defendant based on information that defendant had been involved in yet anothershooting with a .380 caliber handgun, again in the same area, on the night before thesearch.
[*3] We are aware that defendant hada difficult childhood, due in part to his limited intellect and lack of positive role models,and that he had no adult convictions before this series of events, although he had severalplacements in juvenile detention facilities. We also note that the court imposed asignificant sentence. Nevertheless, even the presentence memorandum submitted onbehalf of defendant acknowledged, inter alia, defendant's penchant for carrying andfiring a loaded handgun and the injury he caused in the Christmas Eve shooting andconcluded that, "[b]ased solely on the circumstances of [defendant's] current conviction,one may form the opinion that he is a dangerous young man who needs to be locked upfor a long time." Under these circumstances, we are not persuaded that we shouldexercise our authority to modify the sentence as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [b]). Present—Smith, J.P., Peradotto, Lindley,DeJoseph and Winslow, JJ.