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Appellate Term, Second Department: December 18, 2020

Appellate Term, Second Department: December 18, 2020

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Second, Eleventh and Thirteenth JudicIal Districts Decisions & Orders decided on: December 11, 2020

By: Weston, J.P., Elliot, Siegal, JJ. Appellate Advocates (Nao Terai of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Jonathan K. Yi of counsel), for respondent. 2016-3161 Q CR. PEOPLE v. JOHN E. (ANONYMOUS) — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), rendered October 28, 2016. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child, and imposed sentence. ORDERED that the judgment of conviction is reversed, on the law, and the conviction is vacated and replaced with a finding that defendant is a youthful offender. Upon his plea of guilty, defendant was convicted on October 28, 2016 of endangering the welfare of a child (Penal Law §260.10 [1]). The Criminal Court sentenced defendant to a one-year conditional discharge and issued a five-year order of protection. We agree with defendant’s contention, and the People concede, that the judgment of conviction must be reversed because defendant was 18 years old at the time of the crime to which he pleaded guilty and had not, prior to the entry of his guilty plea, been convicted of a crime or found to be a youthful offender, rendering it mandatory that he be adjudicated a youthful offender (see CPL 720.10; 720.20 [1] [b]; People v. Rudolph, 21 NY3d 497, 500 [2013]). We do not vacate the sentence and remit the matter to the sentencing court for a resentencing, as is generally done, since defendant has already served the sentence (see People v. Newman, 137 AD3d 1306 [2016]; People v. Wilfred, 52 Misc 3d 136[A], 2016 NY Slip Op 51049[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Accordingly, the judgment of conviction is reversed and the conviction is vacated and replaced with a finding that defendant is a youthful offender. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur. December 11, 2020

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