Opinion
August 9, 1982
Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Tsoucalas, J.), imposed March 10, 1980, upon his conviction of criminal possession of a weapon in the second degree, upon his plea of guilty, the sentence being an indeterminate period of imprisonment with a minimum of one and one-half years and a maximum of four and one-half years. The appeal brings up for review the denial of defendant's application for youthful offender treatment. Sentence modified, as a matter of discretion in the interest of justice, by granting defendant's application for youthful offender treatment and reducing the sentence imposed to an indeterminate period of imprisonment with a minimum of one year and a maximum of three years. Under the facts of this case, there are sufficient "mitigating circumstances" to make defendant eligible for youthful offender treatment (see CPL 720.10, subd 3, par [i]). In our view, defendant should have been adjudicated a youthful offender and a sentence of one to three years' imprisonment imposed. O'Connor, Brown and Rubin, JJ., concur.
Gibbons, J.P., concurs as to the granting of defendant's application for youthful offender treatment, but votes to reduce the sentence to a period of imprisonment of one and one-third years to four years.