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POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT).

The Second Department determined the sentencing court erred when it found that defendant was not eligible for youthful offender status. Criminal possession of a weapon in the third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime … . The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded… . Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter to the Supreme Court …, for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Loney, 2018 NY Slip Op 05606, Second Dept 8-1-18

CRIMINAL LAW (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/YOUTHFUL OFFENDER (POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/ARMED FELONY (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE  (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))

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RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION... STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT...