| People v Eley |
| 2015 NY Slip Op 03295 [127 AD3d 583] |
| April 21, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Lafone Eley, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel),for appellant.
Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered January17, 2013, convicting defendant, upon his plea of guilty, of criminal possession of aweapon in the third 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.
Defendant is entitled to resentencing pursuant to People v Rudolph (21 NY3d 497 [2013]) for a youthfuloffender determination on his conviction of criminal possession of a weapon in the thirddegree. A statement made by the court during the plea proceeding does not obviate theneed for resentencing, since the court "did not make the requisite explicit determinationon the record at sentencing" (People v Basono, 122 AD3d 553, 553 [1st Dept 2014];see CPL 720.20 [1]). Although the court stated that defendant would receiveyouthful offender treatment on another charge (contained in an indictment that is not partof this appeal) to which he pleaded guilty on the same day "and only that" count, thecourt failed to clarify expressly whether it had "actually consider[ed] youthful offendertreatment" or whether it had improperly "ruled it out on the ground that it had beenwaived as part of defendant's negotiated plea" (People v Malcolm, 118 AD3d 447, 447 [1st Dept 2014]).Concur—Acosta, J.P., Saxe, Richter, Gische and Kapnick, JJ.