| People v Malcolm |
| 2014 NY Slip Op 04050 [118 AD3d 447] |
| June 5, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kirk Malcolm, Appellant. |
Steven Banks, The Legal Aid Society, New York (Laura Boyd of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William L. McGuire, J.), renderedFebruary 4, 2011, convicting defendant, upon his plea of guilty, of attempted criminalpossession of a weapon in the second degree, and sentencing him to a term of one year,unanimously modified, on the law, to the extent of vacating the sentence and remandingfor resentencing.
The record establishes that the court did not actually consider youthful offendertreatment, but ruled it out on the ground that it had been waived as part of defendant'snegotiated plea. The subsequent determination by the Court of Appeals in People v Rudolph (21 NY3d497, 501 [2013]) that CPL 720.20 (1) requires "that there be a youthful offenderdetermination in every case where the defendant is eligible, even where the defendantfails to request it, or agrees to forgo it as part of a plea bargain" requires a newsentencing proceeding. Although defendant pleaded guilty to an armed felony, he waspotentially eligible under CPL 720.10 (3), and he was thus entitled to a determination (People v Flores, 116 AD3d644 [1st Dept 2014]). This issue survives defendant's waiver of his right to appeal(see People v Pacheco, 110AD3d 927 [2d Dept 2013]). Concur—Mazzarelli, J.P., Friedman, Saxe,Manzanet-Daniels and Feinman, JJ.