State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 105485 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ROODY DORFEUILLE,

Appellant.

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Calendar Date: February 11, 2015

Before: Peters, P.J., Garry, Rose and Lynch, JJ.

__________

Richard V. Manning, Parishville, for appellant.

Mary E. Rain, District Attorney, Canton (Patricia C.

Campbell, Syracuse, of counsel), for respondent.

__________

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
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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 AD3d 1023 [2012], lv

denied 19 NY3d 996 [2012]).1 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. 

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 AD3d 1298, 1299 [2014]; People v

Alexander, 110 AD3d 1111, 1111-1112 [2013], lv denied 22 NY3d

1154 [2014]; People v Warriner, 98 AD3d 1190, 1191 [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 AD3d 1079, 1079

[2011]; People v Kaulback, 46 AD3d 1027, 1028 [2007]). 

1 Tucker's judgment of conviction was similarly modified by

this Court on appeal (People v Tucker, 91 AD3d 1030 [2012], lv

denied 19 NY3d 1002 [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

AD3d 1119 [2011], lv denied 17 NY3d 806 [2011]).
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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 AD3d 1337, 1337 [2013], lv

denied 22 NY3d 1087 [2014] [internal quotation marks and

citations omitted]; see People v Daniels, 106 AD3d 1189, 1190

[2013], lv denied 21 NY3d 1014 [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 AD3d 1281, 1286

[2013]; People v Clark, 84 AD3d 1647, 1647-1648 [2011]; People v

Francis, 83 AD3d 1119, 1123 [2011], lv denied 17 NY3d 806 [2011];

People v Driggs, 24 AD3d 888, 889 [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

AD3d 1099, 1101 [2014], lvs denied 23 NY3d 1059, 1066 [2014];

People v Manley, 70 AD3d 1125, 1125 [2010]; People v Fernandez,

30 AD3d 626, 627 [2006]; People v Roberts, 301 AD2d 756, 757

[2003]), particularly since the circumstances surrounding the

sentencing of each were different (see People v Purcell, 8 AD3d

821, 822 [2004]; People v Durrence, 244 AD2d 728, 728 [1997], lv

denied 91 NY2d 925 [1998]). 

Defendant's remaining claim, that he was denied the

effective assistance of counsel at the resentencing, is without

merit.

Garry, Rose and Lynch, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court