Opinion
2012-06560, Ind. No. 275/12.
09-16-2015
The PEOPLE, etc., respondent, v. T.E. (Anonymous), appellant.
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Gregory Musso and Robert Ho on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Gregory Musso and Robert Ho on the brief), for respondent.
RANDALL T. ENG, P.J., LEONARD B. AUSTIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered May 30, 2012, convicting him of sexual abuse in the first degree and endangering the welfare of a child, 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.
The defendant's general waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; see also People v. Cantarero, 123 A.D.3d 841, 996 N.Y.S.2d 724 ). In any event, the defendant's contention that the Supreme Court failed to consider whether to afford him youthful offender treatment is not barred by a general waiver of the right to appeal (see People v. Brooks, 120 A.D.3d 1255, 991 N.Y.S.2d 899 ; People v. Malcolm, 118 A.D.3d 447, 987 N.Y.S.2d 607 ; People v. Ramirez, 115 A.D.3d 992, 992, 983 N.Y.S.2d 57 ; People v. Pacheco, 110 A.D.3d 927, 973 N.Y.S.2d 704 ; People v. Tyler, 110 A.D.3d 745, 746, 972 N.Y.S.2d 632 ). In People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457, the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where 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.” Compliance with CPL 720.20(1) requires that the sentencing court actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment (see People v. Calkins, 119 A.D.3d 975, 989 N.Y.S.2d 183 ; People v. Malcolm, 118 A.D.3d 447, 987 N.Y.S.2d 607 ; People v. Tyler, 110 A.D.3d 745, 972 N.Y.S.2d 632 ; see also People v. Then, 121 A.D.3d 1025, 994 N.Y.S.2d 420 ; People v. Pacheco, 110 A.D.3d 927, 973 N.Y.S.2d 704 ). Here, the Supreme Court stated that “[t]here is no youthful offender adjudication” when it imposed sentence in accordance with the defendant's plea agreement. However, the court did not place on the record any reason for not adjudicating the defendant a youthful offender, and there is nothing in the record to indicate that it actually independently considered youthful offender treatment instead of denying such treatment because it was not part of the plea agreement. Under these circumstances, we vacate the defendant's sentence, and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment.