Opinion
6 KA 16–00980
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Kharye JARVIS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of two counts of manslaughter in the first degree ( Penal Law § 125.20[1] ). Defendant's sole contention on appeal is that Supreme Court erred in failing to determine at sentencing whether he should be afforded youthful offender status. We agree.
Defendant was previously tried and convicted by a jury in 1992 on two counts of murder in the second degree ( Penal Law § 125.25[1] ), and we affirmed the judgment of conviction on direct appeal ( People v. Jarvis, 202 A.D.2d 1036, 609 N.Y.S.2d 719 [4th Dept. 1994], lv denied 83 N.Y.2d 968, 616 N.Y.S.2d 21, 639 N.E.2d 761 [1994] ). In 2012, defendant moved for a writ of error coram nobis in this Court, asserting that appellate counsel was ineffective in failing to raise an issue on direct appeal that would have resulted in reversal, i.e., failing to argue ineffective assistance of trial counsel. We granted the writ, vacated the prior order, and on de novo review we reversed the judgment and granted defendant a new trial ( People v. Jarvis, 113 A.D.3d 1058, 1059, 978 N.Y.S.2d 522 [4th Dept. 2014], aff’d 25 N.Y.3d 968, 8 N.Y.S.3d 650, 31 N.E.3d 112 [2015] ). On remittal, defendant pled guilty to two counts of manslaughter in the first degree.
As noted, defendant correctly contends that the court erred in failing to determine whether he should be afforded youthful offender status. Further, that contention survives his valid waiver of the right to appeal (see People v. Pacherille, 25 N.Y.3d 1021, 1023, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ). Defendant was 17 years old at the time he committed the underlying crimes and, based on the record before us, he appears to be an eligible youth within the meaning of CPL 720.10(2). Defendant was sentenced, however, without the benefit of an updated presentence report. The court obtained from defendant a waiver of an updated report, which is generally permissible where, as here, the "defendant had been continually incarcerated between the time of the initial sentencing and resentencing and at the time of ... resentencing [the defendant] was afforded the opportunity to supply information about his [or her] subsequent conduct" ( People v. Kuey, 83 N.Y.2d 278, 282–283, 609 N.Y.S.2d 568, 631 N.E.2d 574 [1994] ; see People v. Cobado, 104 A.D.3d 1322, 1322–1323, 960 N.Y.S.2d 843 [4th Dept. 2013] ). Nonetheless, "[w]hen determining whether a defendant is an eligible youth, the defendant's status at the time of the conviction—in this case at the time of his plea of guilty—is controlling" ( People v. Brooks, 160 A.D.3d 762, 764, 74 N.Y.S.3d 353 [2d Dept. 2018], lv denied 31 N.Y.3d 1115, 81 N.Y.S.3d 375, 106 N.E.3d 758 [2018] ; see People v. Cecil Z., 57 N.Y.2d 899, 901, 456 N.Y.S.2d 753, 442 N.E.2d 1264 [1982] ; People v. Michael A.C. [Appeal No. 2], 128 A.D.3d 1359, 1360 [4th Dept. 2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ). The original presentence report prepared in 1992 on which the court relied is insufficient to establish that defendant was an eligible youth at the time he pled guilty to the manslaughter counts in 2016. We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record a determination whether defendant is an eligible youth within the meaning of CPL 720.10(2) with the benefit of an updated presentence report and, if so, whether defendant should be afforded youthful offender status.