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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

 

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