Opinion
01-15-2015
The PEOPLE of the State of New York, Respondent, v. Steve BORIA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Rebecca L. Johannesen of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Rebecca L. Johannesen of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, ANDRIAS, MOSKOWITZ, RICHTER, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered October 2, 2012, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of one year, unanimously modified, on the law, to the extent of vacating the sentence, and remanding for resentencing, and otherwise affirmed.
The record establishes that the court did not consider youthful offender treatment in connection with defendant's conviction for attempted criminal possession of a weapon in the second degree, which does not qualify as an armed felony because it is capable of being committed without the actual possession of a deadly weapon (see CPL 1.20[41] ). Accordingly, defendant was eligible for YO treatment without any finding of mitigation (see CPL 720.10[2] ), and the subsequent determination by the Court of Appeals in People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 (2013) requires a YO determination. In any event, regardless of whether defendant was convicted of an armed felony, he was potentially eligible for YO treatment under the mitigation provisions of CPL 720.10(3), and was therefore entitled to a determination (see People v. Flores, 116 A.D.3d 644, 985 N.Y.S.2d 22 [1st Dept.2014] ).