Opinion
4708, 504/09.
10-17-2017
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.
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.
TOM, J.P., RICHTER, ANDRIAS, GESMER, SINGH, JJ.
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 A.D.3d 592, 999 N.Y.S.2d 56 [1st Dept.2014], lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [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 A.D.3d at 593, 999 N.Y.S.2d 56 ). 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 A.D.3d 524, 39 N.Y.S.3d 137 [1st Dept.2016], lv. denied 28 N.Y.3d 1125, 51 N.Y.S.3d 21, 73 N.E.3d 361 [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.