Opinion
2016–12138 Ind. No. 5926/15
04-18-2018
The PEOPLE, etc., respondent, v. Ray HALL, appellant.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Masha Simonova on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Masha Simonova on the brief), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Betty J. Williams, J.), rendered October 27, 2016, convicting him of attempted assault in the first 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, Kings County, for further proceedings consistent herewith.
CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, "at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender." Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, "even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request" ( People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; see People v. Thomas, 157 A.D.3d 723, 69 N.Y.S.3d 361 ; People v. T.E., 131 A.D.3d 1067, 1068, 16 N.Y.S.3d 587 ; People v. Dawkins, 131 A.D.3d 482, 483, 13 N.Y.S.3d 908 ).
Here, as the People correctly concede, the defendant, who pleaded guilty to attempted assault in the first degree by means of a dangerous instrument, was a youth eligible to be found a youthful offender (see CPL 720.10[1], [2] ), and the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status. Accordingly, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment, and, thereupon, resentencing (see People v. Rudolph, 21 N.Y.3d at 503, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; People v. Thomas, 157 A.D.3d 723, 69 N.Y.S.3d 361 ; People v. Watson, 154 A.D.3d 976, 61 N.Y.S.3d 918 ; People v. Henry, 143 A.D.3d 1001, 39 N.Y.S.3d 802 ; People v. Youmans, 140 A.D.3d 1097, 33 N.Y.S.3d 744 ; People v. Eric P., 135 A.D.3d 882, 883, 23 N.Y.S.3d 379).
MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.