People v Rosado

People v Rosado 2017 NY Slip Op 02066 Decided on March 22, 2017 Appellate Division, Second 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 March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2013-03395
(Ind. No. 12-00899)

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

v

Exander Rosado, appellant.

Lisa H. Blitman, New York, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.

DECISION & ORDER

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, Westchester 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; People v Rudolph, 21 NY3d 497, 501; People v Alston, 145 AD3d 737). 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 BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court