Opinion
2016–06656 Ind. No. 5222/09
02-06-2019
The PEOPLE, etc., Respondent, v. David ALLEYNE, Appellant.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Patricia DiMango, J.), rendered September 19, 2012, as amended November 25, 2014 (Raymond Guzman, J.), convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment, as amended, is modified, on the law, by vacating the sentence imposed; as so modified, the judgment, as amended, is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
The defendant's purported waiver of his right to appeal was invalid (see People v. Brown, 122 A.D.3d 133, 143–144, 992 N.Y.S.2d 297 ). Although the defendant signed a written waiver, the Supreme Court provided the defendant with no explanation as to the nature of the right to appeal and the consequences of waiving it ( id. at 139, 992 N.Y.S.2d 297 ), nor did the court ask the defendant whether he read the waiver form before signing it ( id. at 142, 992 N.Y.S.2d 297 ). Moreover, the court conflated the trial rights the defendant waived automatically by pleading guilty with the right to appeal (see People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). In any event, the defendant's contention that the court failed to consider whether to afford him youthful offender treatment would not have been barred by the defendant's general waiver of the right to appeal (see People v. Minaya, 147 A.D.3d 978, 979, 46 N.Y.S.3d 802 ; People v. Clarke, 144 A.D.3d 937, 40 N.Y.S.3d 790 ).
CPL 720.20(1) requires that the sentencing court "must" determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain ( People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Here, as the People correctly concede, the record fails to demonstrate that the Supreme Court considered the defendant's eligibility for youthful offender status (see People v. Rivera, 27 A.D.3d 491, 491, 810 N.Y.S.2d 333, 334; People v. Martinez, 301 A.D.2d 615, 616, 753 N.Y.S.2d 851 ). Accordingly, under these circumstances, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment (see People v. Minaya, 147 A.D.3d at 979, 46 N.Y.S.3d 802 ; People v. Henry, 143 A.D.3d 1001, 1001, 39 N.Y.S.3d 802 ).
CHAMBERS, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.