        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

506
KA 10-02419
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LAQUAN CRIMM, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered October 6, 2010. The appeal was held by this
Court by order entered November 14, 2014, decision was reserved and
the matter was remitted to Monroe County Court for further proceedings
(122 AD3d 1300). The proceedings were held and completed.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following memorandum: We
previously held this case, reserved decision and remitted the matter
to County Court “to make and state for the record ‘a determination of
whether defendant is a youthful offender’ ” based on the court’s
failure “to determine whether defendant, an eligible youth (see CPL
720.20 [1]), should be afforded youthful offender status” (People v
Crimm, 122 AD3d 1300, 1300 [emphasis added]). Upon remittal, the
court determined that, “[b]ecause [defendant] had [pleaded] guilty to
an armed felony offense,” a determination that defendant was an
eligible youth required, pursuant to CPL 720.10 (3), a finding of
mitigating circumstances bearing directly on the manner in which the
crime was committed or that defendant’s participation in the crime was
relatively minor. Upon finding that neither factor was present, the
court, in effect, determined that defendant was not eligible for
youthful offender status. That was error.

     As the People correctly concede, defendant was not convicted of
an armed felony. Although defendant was convicted of, inter alia, two
counts of robbery in the first degree (Penal Law § 160.15 [1], [3]),
possession of a deadly weapon is not an element of either count (see
CPL 1.20 [41] [a]; see generally People v Keiffer, 207 AD2d 1022,
1022-1023; People v Drew, 147 AD2d 411, 412), nor did defendant
display what appeared to be a firearm (see CPL 1.20 [41] [b]).
Defendant also was convicted of assault in the first degree, which
                                 -2-                           506
                                                         KA 10-02419

contains the element of causing serious physical injury to another
person “by means of a deadly weapon or a dangerous instrument” (Penal
Law § 120.10 [1]). Defendant was armed with a golf club, which is not
“a loaded weapon from which a shot, readily capable of producing death
or other serious physical injury may be discharged” (CPL 1.20 [41]
[a]). The court thus erred in limiting its inquiry upon remittal into
whether defendant was an eligible youth pursuant to the factors set
forth in CPL 720.10 (3), and in failing to address whether defendant,
as an eligible youth, should be adjudicated a youthful offender
pursuant to the criteria set forth in CPL 720.20 (see People v Newman,
137 AD3d 1306, 1307; People v Boria, 124 AD3d 467, 468, lv denied 25
NY3d 1069; People v Minemier, 124 AD3d 1408, 1408). We therefore hold
the case, reserve decision, and remit the matter to County Court to
make and state for the record a determination whether defendant should
be afforded youthful offender status (see People v Rudolph, 21 NY3d
497, 503).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
