People v Alston

2016 NY Slip Op 08243

Decided on December 7, 2016

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 7, 2016

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2012-01841
(Ind. No. 3499/11)

Seymour W. James, Jr., New York, NY (Kristina Schwarz of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Jodi L. Mandel of counsel), for respondent (no brief filed).

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murphy, J.), rendered January 30, 2012, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The Supreme Court was required to determine on the record whether the defendant, whose conviction for criminal possession of a weapon in the second degree constituted an armed felony (see CPL 1.20[41]; Penal Law §§ 70.02[1][b]; 265.03[3]), was an "eligible youth" (see CPL 720.10[2], [3]) and, if so, whether or not he should be afforded youthful offender status (see People v Middlebrooks, 25 NY3d 516, 519; People v Rudolph, 21 NY3d 497, 501). Here, the record does not demonstrate that the court made that determination. Accordingly, we vacate the defendant's sentence, and remit the matter to the Supreme Court, Kings County, for resentencing after making this determination. We express no opinion as to whether the court should afford youthful offender status to the defendant.

RIVERA, J.P., ROMAN, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court