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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Deval DAVIS, Defendant–Appellant.


Decided: January 29, 2019

Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered August 24, 2016, convicting defendant, upon his pleas of guilty, of attempted assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of eight years, unanimously affirmed.

The record establishes that the sentencing court fully discharged its obligations regarding consideration of youthful offender treatment (see People v. Minemier, 29 N.Y.3d 414, 419–421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ).  The record of the sentencing proceeding, at which the court referred to the plea proceeding, establishes that the court made a determination that there were no mitigating circumstances that would render defendant eligible for YO treatment on an armed felony conviction, and that it would decline to grant YO treatment in any event.

Upon our own review, we also find, in this case where defendant fired shots at another person on a busy street, that no mitigating circumstances (see CPL 710.30[3] ) are present, and that regardless of eligibility, YO treatment would be inappropriate.  We perceive no basis for reducing the sentence.

Defendant's claim that his counsel rendered ineffective assistance at sentencing by failing to argue for YO treatment or a lesser sentence is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

The court properly imposed separate surcharges on the two convictions.  Although they involved the same pistol, the two convictions involved separate acts, committed on different days (see People v. Brown, 21 N.Y.3d 739, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ).