Supreme Court, Bronx County, April 23, 2020

Legal Aid Society, Criminal Appeals Bureau (Natalie Rea of counsel), for defendant.

Darcel D. Clark, District Attorney (Joshua Weiss of counsel), for plaintiff.

On May 9, 1994, following a jury trial, defendant was found guilty of two counts of murder in the second degree and criminal possession of a weapon in the second degree for having fatally shot 17-year-old Osvaldo Lucero and Osvaldo's 21-year-old brother Jacinto Lucero at a 16th birthday party for Osvaldo's girlfriend, Melissa DelMoral.^[FN1] On June 2, 1994, defendant was sentenced by this court to consecutive indeterminate terms of imprisonment of from 25 years to life for the two murder convictions and a concurrent term of from 5 to 15 years for the weapons conviction.

Defendant appealed his conviction arguing that the court erred because it declined defendant's request to deliver a justification charge and an intoxication charge, and because his 50 years to life sentence was unduly harsh and excessive due to his age (16 years old) at the time of his commission of the crime and his lack of criminal history. On January 21, 1997, the Appellate Division, First Department, affirmed the judgment of conviction and, in so doing, found that defendant was not entitled to either charge and that there was no abuse of sentencing discretion and therefore no basis to reduce defendant's sentence. (See People v Matias, 235 AD2d 298 [1st Dept 1997], lv denied 89 NY2d 1038 [1997].) On March 8, 2000, the Honorable John Martin dismissed defendant's writ of habeas corpus, and, on March 27, 2001, the United States Court of Appeals, Second Circuit, declined to issue a certificate authorizing an appeal. (See Matias v Artuz, 8 Fed Appx 9 [2d Cir 2001].){**68 Misc 3d at 354}

On October 6, 2006, defendant filed a motion to vacate his conviction pursuant to CPL 440.10 based upon claims of newly discovered evidence and ineffective assistance of counsel.^[FN2] On June 26, 2007, this court denied defendant's motion. In rejecting defendant's newly discovered evidence claim, the court found that the proffered evidence wasn't newly discovered or exculpatory. Moreover, the court found that the trial evidence overwhelmingly demonstrated that defendant was guilty of the crimes for which he was convicted. The court noted that (1) at least three credible witnesses testified to seeing defendant fire the fatal shots; (2) defendant confessed to the shooting both orally and in writing; and (3) the gun defendant admitted firing (and which others at the party where the murders took place had seen him possess) was consistent with the type of weapon the ballistics expert had identified as being the one used to facilitate the double murder. In addition, the court rejected defendant's claim of deficient representation due to counsel's failure to press a claim that the evidence at trial was insufficient to support a conviction for intentional homicide. In reaching this conclusion, the court found that the evidence adduced from the People's witnesses at trial as to defendant's actions both before the shooting (cleaning and reloading his .25 caliber weapon) and during the shooting itself (repeatedly firing his gun at close range, even after Jacinto Lucero was shot in the chest and was futilely attempting to crawl to safety in the confines of a small kitchen) manifested defendant's clear intent to kill.

Now, almost 25 years after his conviction, defendant has filed a motion pursuant to CPL 440.20, this time to vacate his sentence, claiming that (1) based upon fairly recent decisions of the United States Supreme Court interpreting the Eighth Amendment as applied to juvenile offenders,^[FN3] the imposed sentence violates that Amendment's prohibition on cruel and unusual punishments due to the fact that defendant was 16 years old at the time he shot and killed the Lucero brothers and that prior to imposing sentence the court did not properly consider defendant's youth; and (2) his trial counsel, Peter Gersten, Esq., failed to provide meaningful representation at defendant's{**68 Misc 3d at 355} sentencing as he failed to provide the court with mitigating evidence relating to defendant's youth and difficult childhood. For the reasons stated below, defendant's motion is summarily denied.

A brief recitation of what transpired at defendant's sentencing will place the issues now raised by defendant in context.

As required by statute, prior to sentencing the court ordered a presentence report to be prepared by the Probation Department. (See CPL 390.20.) That report, dated June 1, 1994, first noted defendant's pedigree information, including his date of birth, and indicated that defendant had no juvenile or adult criminal record and that there were no charges pending against defendant. The report then gave a brief description of the facts of the shooting and noted that defendant declined to be interviewed by the Probation Department. The report further indicated that due to defendant's refusal to be interviewed by the probation officer who prepared the report, and because no other source was available to be interviewed, the probation officer was unable to provide the court with information regarding defendant's family and social circumstances. The probation officer was able to interview the mother and sister of the deceased victims, each of whom informed the officer that the loss of their two loved ones had traumatized their family to such an extent that they had continued to attend weekly therapy and grief counseling sessions two years after the murders. The mother and sister both reported how much their sons and brothers were missed not only by themselves, but also by their relatives and friends due to "their kind hearts and productiveness." They further reported that Jacinto had dreamed of going to college and Osvaldo had enlisted in the Marines where he had planned to serve his country after he had graduated from high school. The mother and sister both requested that the maximum sentence be imposed. In concluding the report, the probation officer characterized defendant's actions as "an extreme deliberate and callous episode of violence," which "reveals [defendant's] capacity to pose a threat to society," and warrants "a pessimistic outlook for a future conforming [to] community adjustment."^[FN4] (See defendant's mot to vacate, exhibit I.)

{**68 Misc 3d at 356}Defendant was sentenced on June 2, 1994. Prior to imposing sentence, each counsel and defendant were given an opportunity to make a statement. (See CPL 380.50.) First, the trial prosecutor, ADA Daniel McCarthy, made a short, impassioned plea for the maximum sentence for each murder and for the sentences to be imposed consecutively. He noted that the victims' family were "kind, caring and wonderful, hard-working people." He noted that the victims were leading full, productive lives, and that at the time they were gunned down, Osvaldo was 17, a senior in high school who was awaiting entry into the Marines, and that Jacinto was 22, attending college part-time and working full-time in the garment industry. ADA McCarthy also noted that defendant's acts were acts of casual and extreme violence and that defendant had never expressed remorse for his actions. ADA McCarthy asked for a sentence that would exact "some measure of retribution" and "protect the rest of us from Jose Matias," and noted in a final rhetorical flourish (which appears to be somewhat prescient given the issue now raised by defendant), "there will come a time based on Jose Matias' age, when he will have the opportunity to walk out the doors a free man and when that time comes, Jay and Osvaldo will be but fading memories to the people who loved and cared for them." (See defendant's mot to vacate, exhibit J at 4-6.)

Mr. Gersten next spoke briefly on behalf of defendant. Gersten highlighted defendant's age, his lack of criminal history, and the impulsive and aberrational nature of defendant's actions.^[FN5] Gersten concluded by asking for leniency, emphasizing that the shooting is not only a tragedy for the victims' family, but also is a tragedy for defendant's family, and suggested that no purpose would be served by destroying defendant's life by sentencing him to the maximum as requested by the prosecutor. (See defendant's mot to vacate, exhibit J at 6-7.)

The court then asked defendant if he wished to say anything to the court prior to being sentenced. Defendant declined to make a statement.

The court then spoke before imposing sentence.^[FN6] The court first noted that notwithstanding the enormous number of homicides{**68 Misc 3d at 357} in Bronx County at that time, it still couldn't help but be deeply affected by the tragedy presented by the facts of this case. The court then gave a fuller explanation of the reasons for the sentence it was about to impose in which it emphasized the uniqueness of the crime of murder and the severity of the loss to the family of the two victims:

"Murder, of course, is a special kind of crime. Even though it fits in the same book as all the other crimes that we try in this Court, there is an obvious permanence to the consequences and enormous enhancement of the loss that occurs when somebody is murdered. And those are the kind of considerations that force a Court not to give as much consideration as it would otherwise give to the fact that an individual who has been convicted of such a crime has not previously been convicted of another crime. The effect on the victims and the family in this case is particularly poignant because of the characteristics of the two individuals who were murdered. This is a community where many poor people reside and where people of Hispanic origin have an enormous struggle to enter mainstream society. And here we had two young men, seventeen and twenty-one, as I recall, who were truly the hope of their generation—one who was about to enter the Marine Corps, the other one who was planning to go to college. Two young men with no prior criminal involvement, clean-cut, honorable men. The last words of one of them as he was being shot [were], 'We come in peace.' The measure of this case to some extent has to take into account the terrible tragedy of losing these two men and the measure of appropriate punishment also has to take into account the information that we have concerning the individual who is held responsible for that killing, Jose Matias. The actions in this case . . . were striking in not only their violence, but also the casualness by which that violence was perpetrated. These young men were shot for no reason . . . The individual who was shot was with his girlfriend, and the defendant, apparently for reasons of envy or dissatisfaction with the choice freely made by{**68 Misc 3d at 358} two other human beings, decided to destroy one of those individuals and then just for good measure, [to] destroy his brother. I can't be fully moved by the fact that the defendant has not come before me with a long criminal record because I am unable to ignore the consequences of this act, the enormous loss that we have all suffered by losing these two young men. The family has suffered of course even more. And predominantly because I have yet to see anything by reason of the [defendant's] actions . . . following the murders—the callousness, the lack of contrition—to recommend that the defendant be regarded as somebody who can rejoin society or has any true hope for returning to us as a contributing member. The prognosis is so awful that given all the circumstances of this case, I think that there is really no choice for the Court."

The court then imposed sentences of 25 years to life for each count of murder in the second degree. The court imposed those sentences to run consecutively in order to reflect the court's view that "there were two horrendous crimes committed." (See defendant's mot to vacate, exhibit J at 7-10.)

In the instant motion, defendant contends that Gersten "did nothing" at sentencing. (See defendant's mem of law at 11.) In support of this claim, defendant alleges counsel failed to visit defendant during the course of the 21/2 years while he was detained at Rikers Island prior to trial and counsel failed to communicate with defendant during trial. (See affirmation of Natalie Rea ¶ 12; aff of defendant ¶ 7.) In addition, defendant alleges that prior to sentencing, counsel conducted no investigation of defendant's background and failed to obtain defendant's school, health, and other institutional records, or to prepare and submit to the court a sentencing memorandum.^[FN7] (See defendant's mem of law at 11.) Defendant now claims that had counsel conducted a proper investigation, he would have discovered that defendant had a difficult childhood, which included growing up poor and having a father who physically abused both him and his mother. In addition, counsel would{**68 Misc 3d at 359} have discovered and apprised the court that defendant had difficulties in school, had been placed in special education classes, and had dropped out of school in sixth grade. Moreover, counsel would have emphasized defendant's youth to the court and would have established that defendant as a teenager had smoked marijuana, used mescaline, and drank alcohol, and that his older brothers were gang members who had been arrested and convicted of violent crimes. (See affirmation of Natalie Rea ¶¶ 3-10; aff of defendant ¶¶ 3-6.)

In response, in their affirmation in opposition, the People have attached defendant's disciplinary record while incarcerated. Those records demonstrate that between August of 1994 and May of 2019, defendant committed and was sanctioned for approximately 40 Tier II and III prison infractions, including infractions for fighting with correction officers and fellow inmates, possessing weapons, possessing gang-related materials, using, possessing and smuggling drugs, and insubordination. (Affirmation of ADA Joshua Weiss ¶ 17; People's supplemental submission filed Oct. 24, 2019, exhibits 1-9.) In addition, on January 17, 1997, defendant was convicted of promoting prison contraband in the first degree and sentenced to an indeterminate term of imprisonment of 21/2 to 5 years, which was imposed to run consecutively to the 50 years to life sentence on the instant case. Due to his aggregate sentence of 521/2 years to life, defendant will first become eligible for parole on August 25, 2044, when he will be 69 years old. (See affirmation of ADA Joshua Weiss ¶¶ 11, 15.) Had he not been convicted of promoting prison contraband, and had he only been incarcerated for the murders of the Lucero brothers, he would have been first eligible for parole in 2042, when he will be 66 years old.^[FN8] (See defendant's mem of law at 9.)

To prevail on a motion to vacate a sentence, a defendant must establish that his sentence was unauthorized, illegally imposed, or otherwise invalid as a matter of law. (See CPL 440.20 [1].) Here, it is beyond cavil that the imposed sentence was authorized by law. Notwithstanding the fact that defendant{**68 Misc 3d at 360} was 16 when he committed the two murders, his sentence undisputedly fell within the authorized statutory range for a felony offender convicted of a class A felony. (See Penal Law § 70.00 [2] [a]; [3] [a] [i].)^[FN9] Moreover, it is equally uncontested that because defendant committed two separate and distinct acts in shooting and killing each Lucero brother, it was within the court's discretion to sentence defendant to consecutive sentences. (See Penal Law § 70.25.)

With respect to defendant's claim under the Eighth Amendment to the Federal Constitution,^[FN10] the analysis begins with the series of decisions rendered during the past 15 years by the United States Supreme Court in which the Court has held that the Eighth Amendment places limits on the sentencing of juvenile offenders that do not apply to the sentencing of adult offenders. (See Roper v Simmons, 543 US 551 [2005] [Eighth Amendment prohibits the imposition of the death penalty on a juvenile offender who has committed homicide]; Graham v Florida, 560 US 48 [2010] [Eighth Amendment categorically bans the imposition of a life without parole (lwop) sentence on a juvenile offender convicted of non-homicide offenses]; Miller v Alabama, 567 US 460, 483 [2012] [extended Graham and ruled Eighth Amendment prohibits the imposition of an lwop sentence on a juvenile offender convicted of homicide without consideration by the sentencing court of an offender's youth and the characteristics and circumstances attendant to it].)

In Miller, the Court held that state sentencing laws that mandate lwop for juvenile homicide offenders run afoul of the Court's precedents (Roper and Graham) that had interpreted the Eighth Amendment's prohibition on cruel and unusual punishments to require a sentencing authority to at least have the opportunity to consider mitigating circumstances before it{**68 Misc 3d at 361} imposes the harshest possible penalties on juvenile offenders. (567 US at 489.) In reaching that conclusion, the Court emphasized both the distinctive attributes of youth as well as the mandatory nature of the Alabama sentencing law at issue, which precluded the sentencing court from taking into account such mitigating factors as (1) an offender's age and its hallmark features such as immaturity, impetuousity, and recklessness; (2) an offender's family and home environment; and (3) the circumstances of the homicide and the offender's relative culpability. (Id. at 477.)

However, unlike in Graham, where the Court categorically barred the imposition of an lwop sentence on a juvenile offender convicted of a non-homicide offense, in Miller, the Court did not eliminate the power of a state to impose lwop for juvenile homicide offenders. (567 US at 483, 489.) Rather, it required a sentencing court to follow a certain process before imposing lwop, one in which the sentencing court must consider an offender's youth and its attendant characteristics prior to sentencing a juvenile homicide offender.^[FN11]

Next, in Montgomery v Louisiana (— US —, —, 136 S Ct 718, 736 [2016]) the Court held that Miller announced a new substantive rule of constitutional law and was therefore retroactive and applicable to collateral motions such as the one sub judice. In giving Miller retroactive effect, the Court explicitly held that it was not requiring states to relitigate sentences in every case a juvenile homicide offender received mandatory lwop. The Court stated that a state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. (Id.) Allowing those offenders to be considered for parole "ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment." (Id.) Thus, the Court found that a 17 year old convicted of homicide and sentenced to mandatory lwop and who had already served 52 years of his sentence was entitled to a parole hearing where he would be given the opportunity to show that his crime reflected transient immaturity and did not reflect irreparable corruption. The Court directed the parole authority{**68 Misc 3d at 362} to consider the defendant's youth at the time of the homicide, his maturity and whether he had been rehabilitated, including any evidence that indicated defendant had transformed from a troubled, misguided youth into a model member of the prison community. (Id.)

The most recent word from the High Court came in Virginia v LeBlanc (— US —, 137 S Ct 1726 [2017]), a per curiam decision in which the Court granted certiorari and reversed the judgment of the federal district court that had granted a writ of habeas corpus. The federal district court had found that a Virginia trial court's sentence of a juvenile offender (age 16) to mandatory life in prison for a rape and kidnapping conviction was a violation of Graham's prohibition of such a sentence. The Virginia sentencing court had ruled that the imposed sentence did not violate Graham's prohibition of lwop for juvenile offenders convicted of non-homicide offenses because Virginia's geriatric release program afforded a defendant the meaningful opportunity to obtain release if he or she demonstrated maturity and rehabilitation.^[FN12] Because the case arose in the "narrow context" of habeas review, the High Court did not rule on the merits of whether Virginia's geriatric release program satisfied the Eighth Amendment; however, the Court did find that the Virginia court's application of Graham to the facts presented was not unreasonable. (— US at —, 137 S Ct at 1729.)^[FN13]

{**68 Misc 3d at 363}Defendant, relying on a number of decisions of sister states that have interpreted Miller broadly,^[FN14] now seeks to extend the reach of Miller to the discretionary 50 years to life sentence imposed on defendant for a crime committed when he was 16 years old and for which he would have been eligible for parole when he is 66 years old, but for his subsequent conviction and consecutive sentence for promoting prison contraband. For the following reasons, this court declines to read Miller so expansively and finds that defendant's sentence falls outside the ambit of Miller.

When sentencing juvenile homicide offenders, Miller prohibits the imposition of an lwop sentence where such sentence is mandated by the governing sentencing statute and the sentencing authority therefore has no discretion to take into account{**68 Misc 3d at 364} the offender's age or any other mitigating circumstances.^[FN15] However, defendant's reliance on Miller is misplaced as the sentencing statute governing this case and the imposed sentence are readily distinguishable from the statute and sentence found objectionable in Miller. Initially, defendant was sentenced pursuant to a statute that gave the court discretion to sentence defendant to a minimum term of imprisonment of between 15 and 25 years, and also gave the court discretion to sentence defendant to concurrent or consecutive terms. And, in exercising its discretion and sentencing defendant to the maximum term permissible, the record reflects that after reviewing the presentence report and hearing from counsel, the court was made aware of, and properly considered (1) all mitigating factors—including defendant's age and lack of criminal history; (2) all aggravating factors—including the gravity of the crimes, the severity of the loss, the manner in which the crimes were committed, and defendant's lack of remorse; and (3) the penological purposes that would be served by imposing the maximum sentence.^[FN16] Thus, the record reflects that the court imposed the type of individualized sentence required by Miller and the Eighth Amendment.

A second salient point of distinction between the circumstances here and the circumstances in Miller is that defendant was not sentenced to an lwop sentence. Rather, defendant was sentenced to 50 years to life and (had he not been subsequently convicted and sentenced consecutively for promoting prison contraband) he would be eligible for his initial parole hearing at the age of 66, which is an age within his expected natural{**68 Misc 3d at 365} lifetime.^[FN17] (See United States v Mathurin, 868 F3d 921, 934-935 [11th Cir 2017] [court using life expectancy tables from the Centers for Disease Control concludes that sentence of 57 years for 17 year old convicted of multiple armed robberies and carjackings complied with Graham because defendant could be released, after good-time credit is applied to his sentence, when he is 67 years old, which is five years less than the life expectancy of black males and 10 years less than the projected life span for all males his age, and thus he was provided with a realistic opportunity to obtain release before the end of his life].) And indeed, at his initial parole hearing, defendant will be afforded an opportunity to present evidence and have the Parole Board consider his youth and its attendant characteristics at the time he committed the murders, and any other evidence he adduces that demonstrates his maturity and rehabilitation. (See Matter of Rivera v Stanford, 172 AD3d 872, 875 [2d Dept 2019] [Parole Board erred by failing to consider defendant's youth (16) and its attendant characteristics when he committed murder]; Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 140 AD3d 34, 39 [3d Dept 2016] [Parole Board erred by failing to consider fact that defendant was 16 years old at time of murder].) Thus, even if the initial sentencing proceeding that took place in 1994 did not pass constitutional muster, the fact that defendant will be afforded{**68 Misc 3d at 366} a parole hearing during his expected lifetime would certainly do so. (See Virginia v Leblanc, — US —, 137 S Ct 1726; Graham v Florida, 560 US 48.)

Moreover, even if the court were to accept defendant's argument that his sentence is the functional equivalent of an lwop sentence and that the instant sentence fell within the purview of Miller, vacatur of defendant's sentence and a new sentencing hearing still is not required. This is so because even if the court were to credit all the evidence defendant puts forth in the instant motion with respect to his youth and childhood, it would not result in the court altering defendant's sentence. The fact that defendant grew up poor, had an abusive father, had dropped out of school in the sixth grade, had used drugs and drank alcohol as a teenager, and had older siblings who were poor role models, while unfortunate, is not the type of mitigation that the court finds compelling when compared to the two murders that occurred here.

What the court finds more consequential than the mitigation evidence proffered by defendant are the omissions from the affidavits submitted in support of the instant motion by both defendant and his counsel. (See defendant's mot to vacate, exhibit A; affirmation of Natalie Rea in support of defendant's mot to vacate.) Significantly, in his affidavit, defendant fails to show that he has gained insight into the loss and pain caused by his actions as he fails to acknowledge responsibility for the murders, and fails to express any remorse and to apologize to the victims' family and community. Moreover, defendant provides no evidence whatsoever that establishes that he has transformed while in prison by having a positive disciplinary record or having engaged in and completed any rehabilitation programs.^[FN18] Indeed, quite to the contrary, defendant's conduct in prison, his conviction for promoting prison contraband while incarcerated, and his failure to adduce evidence that he has completed any programs, leads to the opposite conclusion—that defendant has not matured and has not been rehabilitated. (Cf. People v Alvarez, 33 NY3d 286, 313-314 [2019, Wilson, J.,{**68 Misc 3d at 367} dissenting] [dissenting Judge suggests that 662/3 to life sentence is unduly harsh for a 19 year old convicted of murder and other violent crimes because defendant has shown transformation while incarcerated by having completed many different rehabilitation and training programs, by having a positive disciplinary record, and by getting married and becoming a loving father and stepfather, and also due to serious health issues requiring full-time care]; see also Montgomery v Louisiana, — US at —, 136 S Ct at 736.)

Thus, if the court were to take a second look at defendant's sentence, it would, as in the thousands of sentences it has imposed, consider all of the information presented by both parties and would take judicial notice of the recent developments in psychology and neuroscience with respect to adolescent brain development and behavior that indicate that the regions of the adolescent brain associated with impulse control, regulation of emotions, risk assessment, and moral reasoning do not reach a fully mature state until after the age of 18.^[FN19] It would then give due consideration to (1) the gravity of the offense, including the sui generis nature of the crime of murder and the permanence of the loss to the family of the victims; (2) the particular circumstances of defendant, including his age, background, and any other mitigation evidence defendant presents; and (3) the purposes of a penal sanction, including societal protection, rehabilitation and deterrence. (See People v Farrar, 52 NY2d 302, 305 [1981].) After doing so, notwithstanding defendant's age when he fatally shot the two victims, the court would again impose consecutive maximum sentences due to the severity of defendant's crimes, the magnitude of the loss suffered by the Lucero family who lost two sons and brothers, and the fact that defendant still has not accepted responsibility for his actions and has not adduced a scintilla of evidence that establishes that he has become a model prisoner and that his crimes{**68 Misc 3d at 368} were the product of "the transient immaturity of youth." Rather, the totality of the record as it now exists demonstrates that defendant is one of those rare juvenile offenders whose crimes reflect "irreparable corruption," and who tragically can be characterized as "permanent[ly] incorrigib[le]." (See Miller v Alabama, 567 US at 479; Montgomery v Louisiana, — US at —, 136 S Ct at 734.)

Defendant's claim of ineffective assistance of counsel at sentencing is equally unavailing. To prevail on such a claim under the Sixth Amendment of the Federal Constitution, defendant must establish that counsel's representation fell below an objective standard of reasonableness and that he was prejudiced by such deficient performance. (See Strickland v Washington, 466 US 668 [1984].) Under the New York Constitution to prevail on an ineffective assistance claim, defendant must demonstrate that counsel failed to provide meaningful representation. (See People v Alvarez, 33 NY3d 286 [2019], supra.) This standard will have been satisfied "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." (People v Baldi, 54 NY2d 137, 147 [1981] [emphasis added].) Moreover, our state standard considers prejudice to be a significant, but not indispensable, element in assessing meaningful representation. (See People v Alvarez, 33 NY3d at 289-290, 293.) Here, for both procedural and substantive reasons, defendant's claim fails under both the federal and New York standards for assessing attorney ineffectiveness.

Initially, defendant's claim fails because, apart from his own unsupported allegations, he provides no corroborative proof that counsel failed to visit and communicate with him during the course of his pretrial incarceration and during the trial itself, and that counsel failed to conduct any investigation with respect to his childhood and background prior to sentencing. (See People v Alvarez, 33 NY3d at 291 [defendant failed to satisfy burden of establishing ineffective assistance of appellate counsel where defendant failed to provide corroborative evidence establishing that his appellate counsel failed to communicate with him].)^[FN20] Moreover, not only is defendant's claim that Gersten failed to communicate with him and his family and failed to conduct any investigation prior to sentencing unsupported,{**68 Misc 3d at 369} it is also implausible. A review of the entire record, including pretrial motions and hearings, the trial itself, and sentencing, makes clear that trial counsel provided exemplary representation. Prior to trial, Mr. Gersten filed motions and obtained a pretrial hearing, during which counsel vigorously opposed the admission of statement and identification evidence. Once trial began, Gersten ably cross-examined the People's witnesses and made numerous objections on defendant's behalf, many of which were sustained. Further, Gersten skillfully elicited testimony from the People's witnesses in attempting to build the foundation for justification and intoxication defenses without having defendant testify and exposing him to cross-examination. Gersten attempted to secure jury instructions with respect to those defenses and then delivered a cogent summation in which he outlined what he perceived to be the prosecution's weaknesses. Finally, after defendant was convicted, at sentencing, albeit briefly, Gersten argued for a lesser sentence and cited as a basis for leniency the most significant mitigating factors available—defendant's youth and his lack of criminal history.^[FN21] Thus, when viewed in totality, and as of the time of the representation, the record fails to establish that defendant was deprived of effective assistance of counsel at sentencing. (See People v Rodriguez, 98 AD3d 693 [2d Dept 2012] [no ineffective assistance of counsel where defendant's contention that at sentencing his attorney failed to argue for a lesser sentence than that imposed was belied by the record]; cf. People v Stella, 188 AD2d 318 [1st Dept 1992] [ineffective assistance of counsel at sentencing where new counsel appointed at sentencing who had no knowledge of case or of defendant's background and had no opportunity to review the presentence report]; People v Gonzalez, 43 AD2d 914 [1st Dept 1974] [ineffective assistance of counsel at sentencing where different lawyer represented defendant at sentencing who knew nothing about the case or even what crime defendant had pleaded guilty to]; People v Edmond, 84 AD2d 938 [4th Dept 1981] [ineffective{**68 Misc 3d at 370} assistance at sentencing where different attorney at sentencing who had not read presentence report and did not make a statement on behalf of defendant].)

In any event, for the reasons stated above (see supra at 366-368), even if Gersten could be faulted for not doing a more comprehensive investigation and making a more detailed presentation to the court at sentencing, the quality of information that he conceivably could have obtained and disclosed to the court would not have caused the court to alter its view of the propriety of a maximum sentence. Thus, not only was defendant afforded meaningful representation at sentencing, he was also not prejudiced by any purported deficiencies in counsel's performance at sentencing.

In the final analysis, defendant was sentenced under discretionary sentencing statutes, the court previously had accounted for the evidence of mitigation provided by defendant including his age and lack of criminal history, defendant would have been eligible for a parole hearing at age 66, and defendant has adduced no evidence in his instant motion to warrant a reduction in his sentence other than his age at the time of the murders. To find under all these circumstances that the imposed sentence violates the Eighth Amendment due to defendant's age when he murdered the Lucero brothers would usurp the legislature's role to prescribe punishments and make policy choices with respect to affording favored treatment to youths at sentencing, and would ignore the Appellate Division's decision not to exercise its interests of justice jurisdiction to ensure sentences are not unduly harsh.^[FN22] (See People v Thompson, 83 NY2d 477, 488 [1994] [15 to life sentence for a 17 year old convicted of A-I sale of narcotics did not violate constitutional prohibition against cruel and unusual punishments as legislature was not irrational in its view of the gravity of the{**68 Misc 3d at 371} offense, the danger posed by the offenders and the penological purposes to be served]; People v Broadie, 37 NY2d 100, 117 [1975] ["(t)he Legislature has latitude in determining which ills of society require criminal sanctions, and in imposing . . . punishments, even mandatory ones, appropriate to each (of those ills)"]; see also People v Scott, 172 AD3d 543, 544 [1st Dept 2019] [First Department finds no basis for reducing aggregate 50 years to life sentence of 22 year old convicted of two murders and sentenced to two consecutive 25 years to life terms and where defendant argued at sentencing and in his brief on appeal that the sentence was excessive due to his status as a first time felony offender, his age, and background]; People v Matias, 235 AD2d 298 [1st Dept 1997] [First Department finds this court did not abuse its discretion in sentencing this 16-year-old defendant convicted of two murders to 50 years to life].)

Based on the foregoing, defendant has failed to establish that the sentence here was unauthorized, illegally imposed, or otherwise invalid as a matter of law. (See CPL 440.20 [1].) Accordingly, defendant's motion to vacate his sentence is denied without a hearing.

"[a]ny person serving a sentence imposed upon a conviction for a felony offense . . . (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release." (— US at —, 137 S Ct at 1728; Va Code Ann § 53.1-40.01.)