Opinion
2018-04275 Ind. No. 9995/16
01-22-2020
The PEOPLE, etc., respondent, v. Malik ALLEN, appellant.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel; Isaiah Affron on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel; Isaiah Affron on the brief), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
CPL 720.20(1) requires "that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain" ( People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). The Supreme Court was required to determine on the record, with respect to the conviction of criminal possession of a weapon in the second degree, which constituted an armed felony (see CPL 1.20[41] ; 720.10[2][a]; Penal Law §§ 70.02, 265.03 ), whether the defendant was an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status (see People v. Middlebrooks, 25 N.Y.3d 516, 519, 14 N.Y.S.3d 296, 35 N.E.3d 464 ; People v. Cooper, 159 A.D.3d 979, 980, 70 N.Y.S.3d 850 ; People v. Rosado, 148 A.D.3d 1058, 48 N.Y.S.3d 625 ; People v. Alston, 145 A.D.3d 737, 41 N.Y.S.3d 716 ). The record does not demonstrate that the court made that determination. In addition, as to the defendant's conviction of robbery in the first degree ( Penal Law § 160.15[1] ), the record does not demonstrate that the Supreme Court considered whether the defendant should be afforded youthful offender treatment.
Accordingly, we vacate the sentence imposed and remit the matter to the Supreme Court, Kings County, for resentencing after making these determinations. We express no opinion as to whether the court should afford youthful offender treatment to the defendant.
In light of our determination, the defendant's contention that the sentence imposed was excessive has been rendered academic.
RIVERA, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.