Opinion
04-11-2024
The PEOPLE of the State of New York, Respondent, v. Clarence ROSS, Defendant-Appellant
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Charles F. Hickerson IV of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Charles F. Hickerson IV of counsel), for respondent.
Oing, J.P., Friedman, Kapnick, Scarpulla, Pitt–Burke, JJ.
Judgments, Supreme Court, Bronx County (Tara A. Collins, J.), rendered September 22, 2022, convicting defendant, upon his pleas of guilty, of attempted robbery in the second degree and robbery in the third degree, and sentencing him to consecutive terms of one year, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharges and fees imposed at sentencing, and otherwise affirmed.
As the People concede, defendant is entitled to an express youthful offender determination pursuant to People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 (2013) on indictment No. 952/20. However, for reasons not fully explained in his briefs, defendant explicitly requests this matter not be remanded for a youthful offender determination and instead requests this Court adjudicate him a youthful offender.
While this Court has previously granted youthful offender treatment as a matter of discretion, such adjudication has come after the trial court has first made an explicit youthful offender determination on the record at sentencing (see e.g. People v. Steven B., 147 A.D.3d 493, 46 N.Y.S.3d 779 [1st Dept. 2017]; People v. Patrie T., 137 A.D.3d 659, 26 N.Y.S.3d 863 [1st Dept. 2016]; People v. Regina L., 129 A.D.3d 533, 10 N.Y.S.3d 431 [1st Dept. 2015]; People v. Maria M., 102 A.D.3d 402, 403, 955 N.Y.S.2d 877 [1st Dept. 2013]). Because the trial court did not make the requisite explicit determination, this matter can only be remanded for resentencing, including a youthful offender determination (see Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457; see e.g. People v. Johnson, 198 A.D.3d 544, 152 N.Y.S.3d 803 [1st Dept. 2021]; People v. Catlett, 196 A.D.3d 418, 146 N.Y.S.3d 780 [1st Dept. 2021]; People v. Lugo, 194 A.D.3d 495, 143 N.Y.S.3d 533 [1st Dept. 2021]; People v. Shabazz, 183 A.D.3d 494, 122 N.Y.S.3d 512 [1st Dept. 2020]; People v. Frye, 174 A.D.3d 440, 101 N.Y.S.3d 830 [1st Dept. 2019]; People v. Rodriguez, 173 A.D.3d 579, 580, 100 N.Y.S.3d 870 [1st Dept. 2019]; People v. Maldonado, 163 A.D.3d 407, 76 N.Y.S.3d 405 [1st Dept. 2018]; People v. Marquez, 149 A.D.3d 544, 50 N.Y.S.3d 266 [1st Dept. 2017]). We further decline to exercise our interest of justice jurisdiction (see People v. Blanco, 143 A.D.3d 616, 39 N.Y.S.3d 760 [1st Dept. 2016], lv denied 28 N.Y.3d 1142, 52 N.Y.S.3d 294, 74 N.E.3d 679 [2017]).
Notwithstanding, we vacate the surcharges and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]). We note that the People do not oppose this relief.