People v. Folk

2022 NY Slip Op 05959

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2022
• Docket: Ind. No. 5863/11 Appeal No. 16519 Case No. 2020-00946
• Status: Published

Opinion

People v Folk (2022 NY Slip Op 05959)

People v Folk

2022 NY Slip Op 05959

Decided on October 25, 2022

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: October 25, 2022
Before: Webber, J.P., Singh, Moulton, González, Pitt, JJ.

Ind. No. 5863/11 Appeal No. 16519 Case No. 2020-00946

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

v

Troy Folk, Defendant-Appellant.

Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Faith Ditrolio of counsel), for respondent.

Judgment, Supreme Court, New York County (Curtis Farber, J.), rendered December 11, 2019, convicting defendant, upon his plea of guilty, of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 10 years, and resentencing defendant, on his previous conviction after trial, of another count of criminal possession of a weapon in the second degree to a concurrent term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

The court properly denied defendant's application for youthful offender treatment because defendant was not an eligible youth within the meaning of the statute. Defendant, who fired a revolver in the street in the course of an altercation with other persons, seriously injuring a bystander who was walking with her child, was not a "minor" participant in the crime (CPL 720.10[3][ii]), and there were no "mitigating circumstances that bear directly upon the manner in which the crime was committed" (CPL 720.10[3][i]). We also perceive no basis for reducing the sentence.

Based on our interest of justice powers and the People's consent, we vacate the surcharge and fees imposed at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 25, 2022