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SENTENCE VACATED AND MATTER REMITTED FOR AN ON-THE-RECORD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MANDATORY SURCHARGES AND FEES WAIVED WITH PEOPLE’S CONSENT (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence and the imposition of mandatory surcharges and fees, held Supreme Court failed to determine on the record whether defendant was eligible for youthful offender status:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . The Supreme Court was required to determine on the record, with respect to the conviction of attempted assault in the first degree, which constituted an armed felony … , whether the defendant was an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status … . …

The defendant was convicted before the enactment of CPL 420.35(2-a), which permits the waiver of surcharges and fees for persons who, like the defendant, were less than 21 years old at the time of the subject crime. However, based on the People’s consent, and pursuant to the exercise of our interest of justice jurisdiction, we waive the surcharge and fees imposed on the defendant at sentencing … . People v Johnson, 2021 NY Slip Op 02544, Second Dept 4-28-21

 

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DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION... APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).