People v. Foote , 2023 NY Slip Op 01484 ( 2023 )

People v Foote (2023 NY Slip Op 01484)

People v Foote

2023 NY Slip Op 01484

Decided on March 21, 2023

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 and Entered: March 21, 2023
Before: Manzanet-Daniels, J.P., Singh, Kennedy, Shulman, JJ.

Ind No. 1146/17 Appeal No. 17549 Case No. 2019-1892

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

v

Enrique Foote, Defendant-Appellant.

Justine M. Luongo, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered November 21, 2018, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of three years, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter for resentencing, including a youthful offender determination, and otherwise affirmed.

As the People concede, defendant is entitled to an express youthful offender determination pursuant to People v Rudolph (21 NY3d 497 [2013]). Defendant's request for a waiver of surcharges and fees pursuant to CPL 420.35 (2-a) should be addressed to

the resentencing court (see People v Lugo, 194 AD3d 495 [1st Dept 2021]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 21, 2023