People v Lugo

People v Lugo 2021 NY Slip Op 02997 Decided on May 11, 2021 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: May 11, 2021
Before: Gische, J.P., Kapnick, Oing, Singh, JJ.
Ind No. 899/18 Appeal No. 13813 Case No. 2019-1850

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

v

Antonio Lugo, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered October 23, 2018, convicting defendant, upon his plea of guilty, of incest in the first degree and criminal sexual act in the first degree, and sentencing him to concurrent terms of seven 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]). Because we are ordering a resentencing, we decline to reach any other issues, including defendant's request for waiver of surcharges and fees pursuant to CPL 420.35(2-a). These issues should be addressed at the resentencing proceeding.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 11, 2021