PEOPLE v. SERRANO

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

The PEOPLE, etc., Respondent, v. Sammy SERRANO, Appellant.

Decided: October 14, 2003

A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, HOWARD MILLER and WILLIAM F. MASTRO, JJ. Stephen J. Pittari, White Plains, N.Y. (David B. Weisfuse of counsel), for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (Lisa Colosi Florio and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a sentence of the County Court, Westchester County (Dickerson, J.), imposed June 11, 2002, upon his conviction of sodomy in the first degree, sexual abuse in the first degree, unlawful imprisonment, and endangering the welfare of a child, upon his plea of guilty, the sentence being concurrent determinate terms of imprisonment of seven years on the conviction of sodomy in the first degree, seven years on the conviction of sexual abuse in the first degree, one year on the conviction of unlawful imprisonment, and one year on the conviction of endangering the welfare of a child, a period of post-release supervision of five years on the conviction of sodomy in the first degree and three and one-half years on the conviction of sexual abuse in the first degree, and an order of protection to remain in effect until June 11, 2012.

ORDERED that the sentence is modified, on the law, by reducing the period of post-release supervision on the conviction of sexual abuse in the first degree from three and one-half years to three years, and deleting from the order of protection the provision that it remain in effect until June 11, 2012;  as so modified, the sentence is affirmed, and the matter is remitted to the County Court, Westchester County, for a new determination of the duration of the order of protection, taking into account the defendant's jail-time credit.

 Contrary to the defendant's contention, he was not eligible for youthful offender treatment.   Since the defendant was convicted of sodomy in the first degree, and was the sole participant in the crime, he could only be adjudicated a youthful offender if “mitigating circumstances” existed “that [bore] directly upon the manner in which the crime was committed” (CPL 720.10[3][i], [ii] ).   Although the defendant presented the sentencing court with evidence, inter alia, that he had a psychiatric disorder and had been required to discontinue certain psychotropic medications before the offense because of their side effects, these were not mitigating circumstances relating to the manner in which the sexual assault was committed.   Accordingly, the defendant could not be adjudicated a youthful offender (see People v. Jhang, 302 A.D.2d 606, 755 N.Y.S.2d 644;  People v. Fields, 287 A.D.2d 577, 578, 731 N.Y.S.2d 492;   People v. Victor J., 283 A.D.2d 205, 724 N.Y.S.2d 162).

 The sentence imposed was neither harsh nor excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   However, as the People correctly concede, the County Court erred in imposing a post-release supervision period of three and one-half years for the defendant's conviction of sexual abuse in the first degree because the maximum period of post-release supervision authorized for a Class D violent felony is three years (see Penal Law § 70.45[2];  People v. Babcock, 304 A.D.2d 912, 758 N.Y.S.2d 412).   Since it is clear that the County Court intended to impose upon the defendant the maximum period of post-release supervision, and we find that it would be appropriate to do so, the judgment is modified to reflect the intention of the court (see People v. Morales, 288 A.D.2d 328, 733 N.Y.S.2d 617).   In addition, we agree with the defendant's contention that the County Court's determination of the duration of the order of protection issued at sentencing pursuant to CPL 530.13(4) should have taken into account his jail-time credit (see People v. Nieves, 305 A.D.2d 520, 758 N.Y.S.2d 834;  People v. Gadsden, 303 A.D.2d 764, 760 N.Y.S.2d 180;  People v. Eaddy, 302 A.D.2d 473, 753 N.Y.S.2d 742, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417;  People v. Regan, 302 A.D.2d 867, 753 N.Y.S.2d 779, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296).   Accordingly, we remit the matter to the County Court, Westchester County, for a new determination of the duration of the order of protection, taking into account the defendant's jail-time credit.

The defendant's remaining contentions either are unpreserved for appellate review or without merit.

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