Opinion
305 KA 18-02096
06-03-2022
The PEOPLE of the State of New York, Respondent, v. Jordan EVANS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and criminal possession of a weapon in the third degree (§ 265.02 [3]). Initially, we conclude that defendant "failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver" ( People v. White , 43 A.D.3d 1407, 1407, 842 N.Y.S.2d 661 [4th Dept. 2007], lv denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 [2007] ; see People v. Dibble , 176 A.D.3d 1584, 1585, 112 N.Y.S.3d 352 [4th Dept. 2019], lv denied 34 N.Y.3d 1077, 116 N.Y.S.3d 170, 139 N.E.3d 828 [2019] ). In any event, defendant's contention lacks merit. The record establishes that defendant "was advised of, understood and knowingly waived his right to a jury trial, after discussing it with counsel and signing a written waiver of jury trial in open court" ( People v. Harris , 139 A.D.3d 1244, 1246, 34 N.Y.S.3d 179 [3d Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; see People v. Wegman , 2 A.D.3d 1333, 1334, 769 N.Y.S.2d 682 [4th Dept. 2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2004] ). To the extent defendant claims he was denied effective assistance of counsel when deciding whether to waive his right to a jury trial, that contention involves matters outside the record on appeal and therefore must be raised by way of a CPL article 440 motion.
Contrary to defendant's further contention, we conclude, after viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the third degree in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), that the verdict on that count is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention that Supreme Court erred in determining that he is not entitled to youthful offender treatment. Before trial, defense counsel requested that the court consider adjudicating defendant a youthful offender (see generally CPL 720.10 [2] [a] [ii] ; [3] [i]). At sentencing, however, defense counsel failed to seek such an adjudication. Nevertheless, the court, at sentencing, stated that it "did not find any mitigating circumstances that would support a youthful offender status." Defense counsel did not object to the denial of youthful offender status. On appeal, defendant contends that the court erred in concluding that there were no mitigating circumstances. Even assuming, arguendo, that defendant's contention is preserved for our review (cf. People v. Lang , 178 A.D.3d 1362, 1363, 112 N.Y.S.3d 632 [4th Dept. 2019], lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 271, 142 N.E.3d 1173 [2020] ; People v. Ficchi , 64 A.D.3d 1195, 1195, 882 N.Y.S.2d 789 [4th Dept. 2009], lv denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ), we conclude that the court did not err in determining that there were no "mitigating circumstances that bear directly upon the manner in which the crime was committed " ( CPL 720.10 [3] [i] [emphasis added]; see generally CPL 720.10 [2] [a] [ii] ; People v. Meridy , 196 A.D.3d 1, 7, 147 N.Y.S.3d 287 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ).
Viewing the evidence, the law, and the circumstances in totality and as of the time of representation, we also reject defendant's contention that he was denied meaningful representation at sentencing (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). In particular, defendant was not denied effective assistance of counsel based on defense counsel's failure to pursue a youthful offender adjudication at sentencing (see People v. Cox , 75 A.D.3d 1136, 1136, 905 N.Y.S.2d 735 [4th Dept. 2010], lv denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ; see also People v. Ayala , 194 A.D.3d 1255, 1257-1258, 147 N.Y.S.3d 751 [3d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 682, 172 N.E.3d 794 [2021] ).
Finally, we conclude that the sentence imposed on the conviction of criminal possession of a weapon in the second degree is not unduly harsh or severe.