Opinion
No. 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.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.), rendered February 28, 2017. The judgment convicted defendant after a nonjury trial of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.
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 [4th Dept 2007], lv denied 9 N.Y.3d 1010 [2007]; see People v Dibble, 176 A.D.3d 1584, 1585 [4th Dept 2019], lv denied 34 N.Y.3d 1077 [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 [3d Dept 2016], lv denied 28 N.Y.3d 930 [2016]; see People v Wegman, 2 A.D.3d 1333, 1334 [4th Dept 2003], lv denied 2 N.Y.3d 747 [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 [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 [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 [4th Dept 2019], lv denied 34 N.Y.3d 1160 [2020]; People v Ficchi, 64 A.D.3d 1195, 1195 [4th Dept 2009], lv denied 13 N.Y.3d 859 [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 [4th Dept 2021], lv denied 37 N.Y.3d 973 [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 [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 [4th Dept 2010], lv denied 15 N.Y.3d 919 [2010]; see also People v Ayala, 194 A.D.3d 1255, 1257-1258 [3d Dept 2021], lv denied 37 N.Y.3d 970 [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.