THE PEOPLE OF THE STATE OF NEW YORK v. MARCUS (2024)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Katia A. Barron of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Julianna Sousou of counsel), for respondent.

Judgment, Supreme Court, New York County (April Newbauer, J.), rendered December 19, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him to concurrent terms of three years, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed.

As the People concede, defendant was eligible for youthful offender treatment without any presumption of ineligibility due to the nature of his crimes (see People v. Boria, 124 AD3d 467, 468 [1st Dept 2015], lv denied 25 NY3d 1069 [2015] ).  Therefore, we remand this matter to the trial court for a youthful offender determination.

Because we are ordering a resentencing, we decline to reach any other issues raised by defendant, including his request for a waiver of the mandatory surcharge and fees pursuant to CPL 420.35(2–a), a matter which may be addressed in the resentencing proceeding and which may be affected by the court's determination.