| People v Newman |
| 2016 NY Slip Op 02383 [137 AD3d 1306] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Newman, Appellant. |
Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andMorgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Foley, J.), rendered June 26, 2013, convicting him of attempted criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear anddetermine whether the defendant should be afforded youthful offender treatment on hisconviction of attempted criminal possession of a weapon in the second degree underindictment No. 8206/12, and the appeal is held in abeyance in the interim.
The defendant pleaded guilty to two counts of attempted criminal possession of aweapon in the second degree, in satisfaction of two separate indictments: indictment No.4915/12 and indictment No. 8206/12. At sentencing, the Supreme Court granted the17-year-old defendant youthful offender status with regard to the conviction underindictment No. 4915/12, but did not grant such status with regard to the conviction underindictment No. 8206/12. The court did not provide any reasons for its determination onthe record. The defendant appeals, arguing that this Court should grant him youthfuloffender status on his conviction under indictment No. 8206/12 or, in the alternative, thisCourt should vacate the sentence and remit the matter to the Supreme Court, KingsCounty, to determine whether the defendant should be granted youthful offender statuson that conviction.
The defendant's claim that the Supreme Court failed to consider youthful offendertreatment on his conviction of attempted criminal possession of a weapon in the seconddegree under indictment No. 8206/12 is not precluded by his general waiver of the rightto appeal (see People vRudolph, 21 NY3d 497 [2013]; People v Pacheco, 110 AD3d 927 [2013]).
In People v Rudolph (21 NY3d at 499), the Court of Appeals held thatcompliance with CPL 720.20 (1), which provides that the sentencing court "must"determine whether an eligible defendant is to be treated as a youthful offender, "cannotbe dispensed with, even where defendant has failed to ask to be treated as a youthfuloffender, or has purported to waive his or her right to make such a request." "Compliancewith CPL 720.20 (1) requires the sentencing court to actually consider and make anindependent determination of whether an eligible youth is entitled to youthful offendertreatment" (People vStevens, 127 AD3d 791, 791-792 [2015]; see People v T.E., 131 AD3d 1067, [*2]1068 [2015]; People v Calkins, 119 AD3d 975 [2014]; People v Malcolm, 118 AD3d447 [2014]; People vTyler, 110 AD3d 745 [2013]).
Here, as the People correctly concede, the Supreme Court failed to adequately placeon the record its reasons for denying the defendant youthful offender status on hisconviction of attempted criminal possession of a weapon in the second degree underindictment No. 8206/12 (seePeople v Worrell, 134 AD3d 1137 [2015]; People v T.E., 131 AD3d at1068; People v Stevens, 127 AD3d at 792; People v Pacheco, 110 AD3d 927 [2013]).
Generally, under such circumstances, the sentence is vacated, and the matter remittedto the sentencing court for resentencing after determining whether the defendant shouldbe treated as a youthful offender (see People v Brooks, 120 AD3d 1255, 1256 [2014]; People v Pacheco, 110 AD3d927 [2013]). In this case, however, the defendant has served his sentence. Underthese circumstances, we remit the matter to the Supreme Court, Kings County, todetermine whether the defendant should be afforded youthful offender treatment on hisconviction of attempted criminal possession of a weapon in the second degree underindictment No. 8206/12, and hold the appeal in abeyance in the interim (see People v Brooks, 120AD3d 1255 [2014]).
We note that, contrary to the People's contention, the defendant's conviction ofattempted criminal possession of a weapon in the second degree does not qualify as anarmed felony because the crime can be committed without the actual possession of adeadly weapon (see CPL 1.20 [41]; People v Boria, 124 AD3d 467 [2015]). Thus, thedefendant was eligible for youthful offender treatment on his conviction of attemptedcriminal possession of a weapon in the second degree under indictment No. 8206/12without any finding of mitigation (see CPL 720.10 [2]; see generally People vMiddlebrooks, 25 NY3d 516 [2015]).
We reach no other issue at this juncture. Mastro, J.P., Hall, Miller and LaSalle, JJ.,concur.