People v. Boria , 1 N.Y.S.3d 82 ( 2015 )

People v Boria (2015 NY Slip Op 00451)

People v Boria

2015 NY Slip Op 00451

Decided on January 15, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

Decided on January 15, 2015
Mazzarelli, J.P., Sweeny, Andrias, Moskowitz, Richter, JJ.

13956 2222/12

[*1] The People of the State of New York, SCI 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.

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 NY3d 497, 501 [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 720.20(3), and was therefore entitled to a determination (see People v Flores, 116 AD3d 644 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 15, 2015

CLERK