People v Eley

People v Eley 2015 NY Slip Op 03295 Decided on April 21, 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 April 21, 2015
Acosta, J.P., Saxe, Richter, Gische, Kapnick, JJ.
14885 3685/12

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

v

Lafone Eley, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered January 17, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him to a term of 1 year, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed.

Defendant is entitled to resentencing pursuant to People v Rudolph (21 NY3d 497 [2013]) for a youthful offender determination on his conviction of criminal possession of a weapon in the third degree. A statement made by the court during the plea proceeding does not obviate the need for resentencing, since the court "did not make the requisite explicit determination on the record at sentencing" (People v Basono, 122 AD3d 553, 553 [1st Dept 2014]; see CPL 720.20[1]). Although the court stated that defendant would receive youthful offender treatment on another charge (contained in an indictment that is not part of this appeal) to which he pleaded guilty on the same day "and only that" count, the court failed to clarify expressly whether it had "actually consider[ed] youthful offender treatment" or whether it had improperly "ruled it out on the ground that it had been waived as part of defendant's negotiated plea" (People v Malcolm, 118 AD3d 447 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 21, 2015

CLERK