| People v Ochoa |
| 2020 NY Slip Op 02156 [182 AD3d 410] |
| April 2, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ezequiel Ochoa, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Kami Lizarragaof counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered February6, 2017, convicting defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree, and sentencing him to a term of six years, unanimouslymodified, on the law, to the extent of vacating the sentence, and remanding for a furtheryouthful offender determination, and otherwise affirmed.
To the extent that the court concluded that defendant was presumptively ineligiblefor youthful offender treatment, that determination was incorrect. Defendant's priorconviction of criminal possession of a weapon in the second degree, for "possess[ing] aloaded firearm" (Penal Law § 265.03 [1] [b]) was not an "armed felony"within the meaning of CPL 720.10 (2) (a). As relevant here, CPL 1.20, which CPL720.10 (2) (a) incorporates, defines "armed felony" as "any violent felony offensedefined in section 70.02 of the penal law that includes as an element . . .possession . . . of a deadly weapon, if the weapon is a loaded weapon fromwhich a shot, readily capable of producing death or other serious physical injury may bedischarged" (CPL 1.20 [41] [a]). The statutory definition of "loaded firearm" explicitlydoes not require that the firearm be "actually" loaded, because it includes within thedefinition a "firearm which is possessed by one who, at the same time, possesses aquantity of ammunition which may be used to discharge such firearm" (Penal Law§ 265.00 [15]). In contrast, the definition of "deadly weapon" contains noproviso indicating that an actually unloaded weapon is deemed "loaded," and thedefinition is therefore met, where usable ammunition is readily available. Accordingly,"in order to be a deadly weapon, a gun must actually be loaded, as that term is commonlyunderstood" (People v Wilson, 252 AD2d 241, 246 [4th Dept 1998] [internalquotation marks omitted], citing People v Shaffer, 66 NY2d 663, 664 [1985]).Since a "loaded firearm" is therefore not always a "deadly weapon," the crime to whichdefendant pleaded guilty did not "include[ ] as an element . . . possession. . . of a deadly weapon" (CPL 1.20 [41] [a]), and the court should not havefound that defendant's conviction rendered him presumptively ineligible. Accordingly,defendant was eligible to be considered for youthful offender status without anypresumption of ineligibility due to the nature of his crime (CPL 720.10 [1], [2]; People v Boria, 124 AD3d467 [1st Dept 2015], lv denied 25 NY3d 1069 [2015]). We therefore remandthis matter to the trial court for further proceedings consistent herewith (see People v Rudolph, 21NY3d 497 [2013]). Concur—Gische, J.P., Gesmer, Oing, Moulton, JJ.