People v. Rosado

2017 NY Slip Op 2066, 148 A.D.3d 1058, 48 N.Y.S.3d 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2017
• Docket: 2013-03395
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Warhit, J.), rendered March 5, 2013, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, West-chester County, for further proceedings consistent herewith.

The Supreme Court was required to determine on the record whether the defendant, whose conviction of burglary in the first degree constituted an armed felony (see CPL 1.20 [41]; Penal Law §§ 70.02 [1] [a]; 140.30 [4]), was an “eligible youth” (CPL 720.10 [2], [3]) and, if so, whether he should be afforded youthful offender status (see People v Middlebrooks, 25 NY3d 516, 519 [2015]; People v Rudolph, 21 NY3d 497, 501 [2013]; People v Alston, 145 AD3d 737 [2016]). Here, as the People correctly concede, the record does not demonstrate that the court made that determination. Accordingly, the defendant’s sentence must be vacated and the matter remitted to the Supreme Court, Westchester County, for resentencing after making this determination.

Balkin, J.P., Miller, Duffy, LaSalle and Brath-waite Nelson, JJ., concur.