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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 80
The People &c.,
            Respondent,
        v.
David Lofton,
            Appellant.




         Brian Shiffrin, for appellant.
         Scott Myles, for respondent.




MEMORANDUM:
         The order of the Appellate Division, insofar as
appealed from, should be reversed and the case remitted to
Supreme Court for consideration of defendant's eligibility for a
youthful offender adjudication.
         We agree with defendant's contention that the trial

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court failed to make an on-the-record determination as to whether
defendant was eligible for a youthful offender adjudication by
first "considering the presence or absence of the factors set
forth in CPL 720.10 (3)" (People v Middlebrooks, 25 NY3d 516, 525
[2015]).
            Defendant's remaining contention, that certain remarks
made by the prosecutor in summation constituted improper burden-
shifting, is without merit.    Viewed in conjunction with the
entire summation and the trial court's corrective action, the
challenged remarks did not deprive defendant of a fair trial (see
People v Romero, 7 NY3d 911, 913 [2006]).
*   *   *     *   *   *   *   *     *     *   *   *   *   *   *   *   *
Order, insofar as appealed from, reversed and case remitted to
Supreme Court, Monroe County, for further proceedings in
accordance with the memorandum herein. Chief Judge DiFiore and
Judges Rivera, Stein, Fahey, Garcia and Wilson concur. Judge
Feinman took no part.

Decided June 22, 2017




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