| People v Boria |
| 2015 NY Slip Op 00451 [124 AD3d 467] |
| January 15, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Steve Boria, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Jeffrey Dellheim ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Rebecca L. Johannesen of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered October 2,2012, convicting defendant, upon his plea of guilty, of attempted criminal possession of aweapon in the second degree, and sentencing him to a term of one year, unanimouslymodified, on the law, to the extent of vacating the sentence, and remanding forresentencing, and otherwise affirmed.
The record establishes that the court did not consider youthful offender (YO)treatment in connection with defendant's conviction for attempted criminal possession ofa weapon in the second degree, which does not qualify as an armed felony because it iscapable of being committed without the actual possession of a deadly weapon(see CPL 1.20 [41]). Accordingly, defendant was eligible for YO treatmentwithout any finding of mitigation (see CPL 720.10 [2]), and the subsequentdetermination by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]) requires aYO determination. In any event, regardless of whether defendant was convicted of anarmed felony, he was potentially eligible for YO treatment under the mitigationprovisions of CPL 720.10 (3), and was therefore entitled to a determination (see People v Flores, 116 AD3d644 [1st Dept 2014]). Concur—Mazzarelli, J.P., Sweeny, Andrias,Moskowitz and Richter, JJ.