| People v Crimm |
| 2016 NY Slip Op 04573 [140 AD3d 1672] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLaquan Crimm, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.),rendered October 6, 2010. The appeal was held by this Court by order entered November14, 2014, decision was reserved and the matter was remitted to Monroe County Court forfurther proceedings (122 AD3d 1300 [2014]). The proceedings were held andcompleted.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: We previously held this case, reserved decision and remittedthe matter to County Court "to make and state for the record 'a determination of whetherdefendant is a youthful offender' " based on the court's failure "to determinewhether defendant, an eligible youth (see CPL 720.20 [1]), should beafforded youthful offender status" (People v Crimm, 122 AD3d 1300, 1300[2014] [emphasis added]). Upon remittal, the court determined that, "[b]ecause[defendant] had [pleaded] guilty to an armed felony offense," a determination thatdefendant was an eligible youth required, pursuant to CPL 720.10 (3), a finding ofmitigating circumstances bearing directly on the manner in which the crime wascommitted or that defendant's participation in the crime was relatively minor. Uponfinding that neither factor was present, the court, in effect, determined that defendant wasnot eligible for youthful offender status. That was error.
As the People correctly concede, defendant was not convicted of an armed felony.Although defendant was convicted of, inter alia, two counts of robbery in the first degree(Penal Law § 160.15 [1], [3]), possession of a deadly weapon is not anelement of either count (see CPL 1.20 [41] [a]; see generally People vKeiffer, 207 AD2d 1022, 1022-1023 [1994]; People v Drew, 147 AD2d 411,412 [1989]), nor did defendant display what appeared to be a firearm (see CPL1.20 [41] [b]). Defendant also was convicted of assault in the first degree, which containsthe element of causing serious physical injury to another person "by means of a deadlyweapon or a dangerous instrument" (Penal Law § 120.10 [1]). Defendantwas armed with a golf club, which is not "a loaded weapon from which a shot, readilycapable of producing death or other serious physical injury may be discharged" (CPL1.20 [41] [a]). The court thus erred in limiting its inquiry upon remittal into whetherdefendant was an eligible youth pursuant to the factors set forth in CPL 720.10 (3), andin failing to address whether defendant, as an eligible youth, should be adjudicated ayouthful offender pursuant to the criteria set forth in CPL 720.20 (see People v Newman, 137AD3d 1306, 1307 [2016]; People v Boria, 124 AD3d 467, 468 [2015], lv denied25 NY3d 1069 [2015]; People v Minemier, 124 AD3d 1408, 1408 [2015]). Wetherefore hold the case, reserve decision, and remit the matter to County Court to makeand state for the record a determination whether defendant should be afforded youthfuloffender status (see People vRudolph, 21 NY3d 497, 503 [2013]). Present—Whalen, P.J., Smith,Peradotto and Carni, JJ.