On May 28, 2025, the defendant pled guilty to two different indictments. On the first, the defendant pled guilty to Criminal Possession of a Weapon in the Second Degree, with a promised sentence of four years prison, with five years post release supervision. On the second, the defendant pled guilty to Criminal Possession of a Firearm, with a promised sentence of one to three years prison. The time on each plea is to run concurrent to the other. The defendant seeks youthful offender status on each of his pleas. The People oppose.

In People v Drayton, 38 NY2d 580, 584 (1976), the Court of Appeals wrote: "The youthful offender provisions of the Criminal Procedure Law emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals."

In any case where the defendant is eligible, a youthful offender determination must be made by the Court (see CPL 720,20[1]; People v Randolph, 21 NY3d 497 [2013]). "The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case" (People v Sheldon O., 169 AD3d 1062, 1063 [2nd Dept 2019]).

An offender is eligible for youthful offender status if he is less than 19 years old at the time of the crime, and the conviction is not one for an "armed felony" along with various other conditions. Certain violent felonies, sex offenses, and other serious offenses may disqualify a defendant for youthful offender status (see CPL 720.10).

The parties do not dispute that the defendant is youthful offender eligible on his plea to Criminal Possession of a Firearm. The defendant maintains that he is also youthful offender eligible under his plea to Criminal Possession of a Weapon in the Second Degree. The People disagree.

The dispute involves, in the first place, whether Criminal Possession of a Weapon in the Second Degree is an "armed felony." The defendant points to a First Department case — People v Ochoa, 182 AD3d 410 (1st Dept 2020) — which holds that Criminal Possession of a Weapon [*2]in the Second Degree is not an armed felony; and to a Fourth Department case — People v Meridy, 196 AD2d 1 [4th Dept 2021]) — which holds that whether or not Criminal Possession of a Weapon in the Second Degree is an armed felony depends upon the facts of the case. The Second Department, however, has consistently held that Criminal Possession of a Weapon in the Second Degree is an armed felony (see eg People v Hinton, 187 AD3d 906 [2nd Dept 2020]; People v Hunter, 187 AD3d 906 [2nd Dept 2022]; People v Sanford, 173 AD3d 906 [2nd Dept 2019]). These cases, of course, are controlling authority on this court (see eg Pan v New York State Department of Correctional Services, 16 Misc 3d 1101[A] [Sup Ct Kings Co, 2007]). Accordingly, this court finds that Criminal Possession of a Weapon in the Second Degree is an armed felony.

In the second prong of the youthful offender enquiry, even if the defendant is convicted of an armed felony, he remains eligible for youthful offender status if the court finds "mitigating circumstances that bear directly upon the manner in which the crime was committed" (see CPL 720.10[3]). If mitigating circumstances are found, the defendant can be granted youthful offender status.

"The phrase 'mitigating circumstances that bear directly upon the manner in which the crime was committed,' connotes '[f]actors 'directly' flowing from and relating to defendant's personal conduct while committing the crime,' and generally does not include a "defendant's age, background [and] criminal history' (People v DM, 168 AD3d 879, 880 [2nd Dept 2019]; quoting People v Garcia, 84 NY2d 336, 342 [1994]; emphasis added).

Here, the only factor that defendant cites in his favor, apart from those that generally come under the heading of 'defendant's age, background and criminal history' is the fact that no one, as far as we know, was injured as the result of defendant's barrage. "Courts have consistently held," writes the defendant, "lack of injury to be a mitigating factor" citing People v Morris, 199 AD3d 835, 836-37 (2nd Dept 2021) and Garcia (supra). The lack of injury in both of those cases, however, had to do with some choice the defendant made, or some act of forbearance — choosing not to display the weapon, for example. In other words, the defendant's personal conduct while committing the crime.

Here, the fact that no one was injured — either his targets or persons in nearby buildings — can only be ascribed to dumb luck. The defendant is seen, via surveillance video, nearly hopping, or skipping down the sidewalk, firing wildly at his presumptive targets across the street.

Accordingly, the court finds that the defendant is not eligible for youthful offender status under his conviction for Criminal Possession of a Weapon in the Second Degree, because Criminal Possession of a Weapon in the Second Degree is an "armed felony" and the court has found no mitigating factors.

This leaves the question of the defendant's status under his plea to Criminal Possession of a Firearm, which, defendant being eligible as stated above, is up to the court's discretion and judgement.

The court notes that in a little less than one year, the defendant has been arrested three times on gun charges. On August 27, 2024, the defendant was adjudicated a juvenile delinquent in Family Court for Criminal Possession of a Weapon in the Second Degree, based on an incident which occurred on October 31, 2023. On April 6, 2024, as seen above, the defendant was captured on video firing a weapon multiple times in broad daylight, at people on a Brooklyn street. Police later recovered nine shell casings from the scene. On October 26, 2024 — the [*3]incident which forms the basis of defendant's plea to Criminal Possession of a Firearm — while out on bail for the prior incident, the defendant, when approached by officers, threw a firearm to the ground and fled. With this, the third of defendant's gun crimes in one calendar year, the court has no concerns about "stigmatizing" this youth with a criminal record. Accordingly, defendant is denied youthful offender status on this conviction.

Lastly, PL 70.25(2-b) requires the court, when sentencing a defendant who commits a violent felony while out on bail on a pending felony, to run the sentences on each conviction consecutively, absent mitigating circumstances. Once again, as with youthful offender status, these mitigating circumstances must "bear directly upon the manner in which the crime was committed" (see Garcia, supra) rather than the defendant's age, background and criminal history. Here, the defendant neither brandished, displayed or fired the weapon. Accordingly, the court finds that to be a mitigating factor, and orders the defendant's terms on these two convictions to run concurrently.

This constitutes the court's decision and order.