Opinion
105485.
04-16-2015
The PEOPLE of the State of New York, Respondent, v. Roody DORFEUILLE, Appellant.
Richard V. Manning, Parishville, for appellant. Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, of counsel), for respondent.
Richard V. Manning, Parishville, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.
Opinion
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 his conviction of the crimes of attempted assault in the first degree and attempted gang assault in the first degree.
Defendant and his codefendants, Darryl Tucker and Jevaughn Francis, were indicted on several charges stemming from their involvement in a violent attack upon the victim during which they punched, kicked and stabbed the victim several times. Following a jury trial, defendant and Tucker were found guilty of gang assault in the first and second degrees and assault in the first and second degrees, and Francis was found guilty of assault in the second degree. Defendant was sentenced, as relevant here, to concurrent prison terms of 12 years followed by five years of postrelease supervision for both gang assault in the first degree and assault in the first degree. Upon defendant's appeal, we dismissed the counts charging gang assault in the second degree and assault in the second degree, reduced the conviction of gang assault in the first degree to attempted gang assault in the first degree and the conviction of assault in the first degree to attempted assault in the first degree, and remitted the matter for resentencing on those reduced counts (91 A.D.3d 1023, 936 N.Y.S.2d 377 [2012], lv. denied 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ). Upon remittal, County Court denied defendant's application for youthful offender status and resentenced him to an aggregate prison term of 11 years followed by five years of postrelease supervision. Defendant appeals.
Tucker's judgment of conviction was similarly modified by this Court on appeal (People v. Tucker, 91 A.D.3d 1030, 936 N.Y.S.2d 386 [2012], lv. denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ) and, upon remittal, Tucker was resentenced to an aggregate prison term of nine years followed by five years of postrelease supervision. Francis' conviction of assault in the second degree was affirmed (People v. Francis, 83 A.D.3d 1119, 922 N.Y.S.2d 581 [2011], lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011] ).
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We are unpersuaded by defendant's contention that County Court abused its discretion in denying him youthful offender status. Initially, to the extent that defendant asserts that the presentence investigation report relied upon by County Court was incomplete and that the court erred in resentencing him without an updated report, such claims are unpreserved for our review inasmuch as defendant failed to request an updated report, raise an objection during resentencing or move to vacate the resentence (see People v. Brown, 123 A.D.3d 1298, 1299, 999 N.Y.S.2d 242 [2014] ; People v. Alexander, 110 A.D.3d 1111, 1111–1112, 972 N.Y.S.2d 353 [2013], lv. denied 22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ; People v. Warriner, 98 A.D.3d 1190, 1191, 951 N.Y.S.2d 276 [2012] ). Indeed, in response to County Court's inquiry, defense counsel specifically indicated that there was no need for an update of the presentence report. In any event, defendant was given an opportunity to apprise the court of any pertinent information prior to resentencing (see People v. Clark, 80 A.D.3d 1079, 1079, 914 N.Y.S.2d 918 [2011] ; People v. Kaulback, 46 A.D.3d 1027, 1028, 847 N.Y.S.2d 691 [2007] ).
Addressing the merits of defendant's argument, “[t]he decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court's discretion and, absent a clear abuse of that discretion, its decision will not be disturbed” (People v. Brodhead, 106 A.D.3d 1337, 1337, 965 N.Y.S.2d 250 [2013], lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 672, 4 N.E.3d 974 [2014] [internal quotation marks and citations omitted]; see People v. Daniels, 106 A.D.3d 1189, 1190, 964 N.Y.S.2d 753 [2013], lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ). Here, although defendant was 17 years old at the time of the incident and had no prior criminal record, County Court placed great emphasis on the gravity of the crimes and the violent and intentional nature of the concerted attack by defendant and his codefendants against this unarmed victim. The court also specifically noted defendant's repeated failure to accept responsibility for the crimes or admit that he had engaged in any wrongdoing. Under these circumstances, we cannot say that County Court abused its discretion in denying defendant's application for youthful offender treatment (see People v. Fernandez, 106 A.D.3d 1281, 1286, 968 N.Y.S.2d 603 [2013] ; People v. Clark, 84 A.D.3d 1647, 1647–1648, 925 N.Y.S.2d 674 [2011] ; People v. Francis, 83 A.D.3d 1119, 1123, 922 N.Y.S.2d 581 [2011], lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011] ; People v. Driggs, 24 A.D.3d 888, 889, 804 N.Y.S.2d 703 [2005] ).
For the same reasons, we are also unconvinced that defendant's resentence, which falls within the permissible statutory range, was harsh or excessive. Contrary to defendant's argument, the mere fact that Tucker received a lesser sentence upon his conviction of the same crimes (see n., supra ) does not warrant a reduction of his sentence (see People v. Robinson, 117 A.D.3d 1099, 1101, 984 N.Y.S.2d 479 [2014], lvs. denied 23 N.Y.3d 1059, 1066, 994 N.Y.S.2d 318, 325, 18 N.E.3d 1139, 1146 [2014] ; People v. Manley, 70 A.D.3d 1125, 1125, 894 N.Y.S.2d 575 [2010] ; People v. Fernandez, 30 A.D.3d 626, 627, 815 N.Y.S.2d 358 [2006] ; People v. Roberts, 301 A.D.2d 756, 757, 752 N.Y.S.2d 917 [2003] ), particularly since the circumstances surrounding the sentencing of each were different (see People v. Purcell, 8 A.D.3d 821, 822, 778 N.Y.S.2d 574 [2004] ; People v. Durrence, 244 A.D.2d 728, 728, 666 N.Y.S.2d 49 [1997], lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 406, 693 N.E.2d 753 [1998] ).
Defendant's remaining claim, that he was denied the effective assistance of counsel at the resentencing, is without merit.
ORDERED that the judgment is affirmed.
GARRY, ROSE and LYNCH, JJ., concur.