        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

585
KA 13-00803
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KYLE M. JULIANO, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

KYLE M. JULIANO, DEFENDANT-APPELLANT PRO SE.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (John J.
Brennan, A.J.), rendered November 13, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence imposed to a determinate term of 7
years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal sexual act in the first degree (Penal
Law § 130.50 [3]). Defendant contends in his main and pro se
supplemental briefs that County Court erred in admitting in evidence
that part of defendant’s statement that referred to a prior act of
abuse against the victim. We reject defendant’s contention. That
part of his statement was properly admitted to provide necessary
background information and to complete the narrative (see People v
Leeson, 12 NY3d 823, 826-827; People v Ennis, 107 AD3d 1617, 1618, lv
denied 22 NY3d 1040, reconsideration denied 23 NY3d 1036). The
probative value of that testimony outweighed any prejudice to
defendant and, in any event, any prejudice to defendant was minimized
by the court’s limiting instructions (see People v Rogers, 103 AD3d
1150, 1152-1153, lv denied 21 NY3d 946).

     We reject defendant’s contention in his main and pro se
supplemental briefs that the court abused its discretion in refusing
to afford him youthful offender status. “Pursuant to CPL 720.10 (3)
(i), a youth who is convicted of, inter alia, . . . first-degree
criminal sexual act is ineligible for a youthful offender adjudication
unless the court concludes, insofar as relevant here, that there are
                                 -2-                           585
                                                         KA 13-00803

‘mitigating circumstances that bear directly upon the manner in which
the crime was committed’ ” (People v Pulvino, 115 AD3d 1220, 1223, lv
denied 23 NY3d 1024), and the court properly concluded that there were
no such mitigating circumstances in this case (see id.; People v
Terry, 19 AD3d 1039, 1040, lv denied 5 NY3d 833). Defendant’s further
contention in his main brief that he was penalized for exercising his
right to a trial, inasmuch as the court imposed a harsher sentence
than the one offered during plea negotiations, is not preserved for
our review, and it is without merit in any event (see People v
Griffin, 48 AD3d 1233, 1236-1237, lv denied 10 NY3d 840).

     We agree with defendant, however, that the sentence is unduly
harsh and severe, particularly considering defendant’s mental
disabilities and lack of a prior criminal record. We therefore modify
the judgment, as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [b]), by reducing the sentence imposed to a
determinate term of imprisonment of 7 years, to be followed by the 15-
year period of postrelease supervision previously imposed. We have
examined the remaining contentions of defendant raised in his pro se
supplemental brief and conclude that they are without merit.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
