Opinion
742 KA 20-00319
10-07-2022
The PEOPLE of the State of New York, Respondent, v. Joseph SEYMOUR, Defendant-Appellant.
HUNT LAW OFFICE, SYRACUSE (MARSHA A. HUNT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
HUNT LAW OFFICE, SYRACUSE (MARSHA A. HUNT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, 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 upon his plea of guilty of three counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and three counts of criminal possession of a firearm (§ 265.01-b [1]). Contrary to defendant's contention, County Court did not err in concluding that defendant was not an eligible youth and therefore denying defendant youthful offender treatment (see People v. Williams , 197 A.D.3d 975, 976, 150 N.Y.S.3d 643 [4th Dept. 2021], lv denied 37 N.Y.3d 1062, 154 N.Y.S.3d 644, 176 N.E.3d 680 [2021] ; People v. Gonzalez , 185 A.D.3d 1436, 1436-1437, 125 N.Y.S.3d 616 [4th Dept. 2020], lv denied 35 N.Y.3d 1094, 131 N.Y.S.3d 313, 155 N.E.3d 806 [2020] ). Where, as here, a defendant is convicted of an armed felony (see CPL 1.20 [41] ; People v. Meridy , 196 A.D.3d 1, 3-6, 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] ), he or she may be adjudicated a youthful offender only where he or she was not the sole participant in the crime and his or her participation was relatively minor (see CPL 720.10 [3] [ii] ), or where there are "mitigating circumstances that bear directly upon the manner in which the crime was committed" ( CPL 720.10 [3] [i] ), i.e., circumstances that "bear directly on defendant's personal conduct in committing the crime" ( People v. Garcia , 84 N.Y.2d 336, 342, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994] ; see People v. Jones , 166 A.D.3d 1479, 1480, 88 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019] ). As we noted in a codefendant's appeal, defendant was one of three participants who police officers saw pointing guns in the direction of a gas station after they heard gunshots while on patrol (see Meridy , 196 A.D.3d at 3, 7, 147 N.Y.S.3d 287 ). The officers heard more gunshots as the three men ran away and observed muzzle flash on at least one of the firearms. Defendant's participation in the offense was therefore not minor, and we also conclude that there were no mitigating circumstances bearing directly upon the manner in which the crime was committed (see id. at 7, 147 N.Y.S.3d 287 ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.