Opinion
2021–02604 Ind. No. 1366/19
05-10-2023
The PEOPLE, etc., respondent, v. Jonathan Gutierrez CARRANZA, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Tammy J. Smiley of counsel), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Tammy J. Smiley of counsel), for respondent.
MARK C. DILLON, J.P., LARA J. GENOVESI, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered March 10, 2021, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court (see People v. Pray, 183 A.D.3d 842, 842, 124 N.Y.S.3d 59 ; People v. Coleman, 138 A.D.3d 1014, 1015, 29 N.Y.S.3d 552 ; People v. Catts, 26 A.D.3d 341, 341, 812 N.Y.S.2d 549 ), and the narrow exception to the preservation rule is inapplicable in this case (see People v. Patel, 74 A.D.3d 1098, 1099, 904 N.Y.S.2d 99 ). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered.
" Criminal Procedure Law § 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain" ( People v. Baldwin, 186 A.D.3d 498, 498, 126 N.Y.S.3d 389 ; see People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). "Where a defendant is an eligible youth, the determination of whether to afford him or her youthful offender treatment must be explicitly made on the record" ( People v. Lockwood, 184 A.D.3d 670, 670, 123 N.Y.S.3d 507 ). Here, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Nassau County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment (see People v. Belford, 210 A.D.3d 793, 178 N.Y.S.3d 183 ; People v. Downing, 200 A.D.3d 704, 159 N.Y.S.3d 153 ; People v. Slide, 197 A.D.3d 1184, 153 N.Y.S.3d 622 ; People v. Baldwin, 186 A.D.3d 498, 126 N.Y.S.3d 389 ; People v. Lockwood, 184 A.D.3d 670, 123 N.Y.S.3d 507 ; People v. Lessane, 169 A.D.3d 827, 91 N.Y.S.3d 890 ). We express no opinion as to whether the court should afford youthful offender treatment to the defendant.
Further, upon determination of the defendant's youthful offender status and resentencing, the Supreme Court must reconsider the imposition of mandatory surcharges and fees (see People v. Dyshawn B., 196 A.D.3d 638, 641, 152 N.Y.S.3d 131 ).
The defendant's remaining contention is without merit.
DILLON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.