You are here: / / PRIOR CONVICTION OF CRIMINAL POSSESSION OF A WEAPON DID NOT DISQUALIFY...

PRIOR CONVICTION OF CRIMINAL POSSESSION OF A WEAPON DID NOT DISQUALIFY DEFENDANT FROM ELIGIBILITY FOR YOUTHFUL OFFENDER STATUS; IT IS NOT AN ‘ARMED FELONY’ (FIRST DEPT).

The First Department, vacating defendant’s sentence, determined the prior conviction of criminal possession of a weapon was not an “armed felony” did not render defendant ineligible for youthful offender status:

Defendant’s prior conviction of criminal possession of a weapon in the second degree, for “possess[ing] a loaded firearm” (Penal Law § 265.03[1][b]) was not an “armed felony” within the meaning of CPL 720.10(2)(a). As relevant here, CPL 1.20, which CPL 720.10(2)(a) incorporates, defines “armed felony” as “any violent felony offense defined in section 70.02 of the penal law that includes as an element . . . possession . . . of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged” … . The statutory definition of “loaded firearm” explicitly does not require that the firearm be “actually” loaded, because it includes within the definition a “firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm” (Penal Law § 265.00[15]). In contrast, the definition of “deadly weapon” contains no proviso indicating that an actually unloaded weapon is deemed “loaded,” and the definition is therefore met, where usable ammunition is readily available. Accordingly, “in order to be a deadly weapon, a gun must actually be loaded, as that term is commonly understood” … . Since a “loaded firearm” is therefore not always a “deadly weapon,” the crime to which defendant pleaded guilty did not “include[] as an element . . . possession . . . of a deadly weapon” (CPL 1.20[41][a]), and the court should not have found that defendant’s conviction rendered him presumptively ineligible. People v Ochoa, 2020 NY Slip Op 02156, First Dept 4-2-20

 

You might also like
Doctrine of Continuous Representation/Retainer Agreement in Estate Proceeding “Unconscionable”​
Frivolous Lawsuit Warranted Sanctions and the Award of Attorney’s Fees
THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).
PLAINTIFF FELL WHEN A TEMPORARY SCAFFOLD HE HAD BUILT COLLAPSED; DEFENDANTS ARGUED PLAINTIFF DID NOT FOLLOW INSTRUCTIONS ON HOW TO PROPERLY BUILD THE SCAFFOLD; THE RECALCITRANT-WORKER DEFENSE DID NOT APPLY BECAUSE PLAINTIFF WAS NEVER PROVIDED WITH AN ADEQUATE SAFETY DEVICE AND PLAINTIFF’S ALLEGED COMPARATIVE NEGLIGENCE WILL NOT DEFEAT A LABOR LAW 240(1) SUMMARY JUDGMENT MOTION (FIRST DEPT).
THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).
DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).
Court Must Make a Youthful Offender Determination Even When Defendant Waives It
Failure to Identify Notice Witness, Erroneous Missing Witness Charge and Erroneous Preclusion of Evidence Required Reversal.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE TORTIOUS INTERFERENCE WITH CONTRACT AND DEFAMATION CAUSES OF ACTION WERE... DEFENDANT’S REPEATED REQUESTS TO REPRESENT HIMSELF SHOULD NOT HAVE BEEN...