| People v Jahquel L. |
| 2013 NY Slip Op 08475 [112 AD3d 1155] |
| December 19, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v JahquelL., Respondent. |
—[*1] Kindlon Shanks & Associates, Albany (Terence L. Kindlon of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 12, 2013, which sentenced defendant upon his adjudication as a youthfuloffender.
Defendant was charged in a superior court information with attempted burglary inthe second degree arising out of an incident in the City of Cohoes, Albany County thattook place when he was 17 years old. Pursuant to a plea agreement that provided, amongother things, for a proposed prison term of four years, defendant waived his right to agrand jury indictment and pleaded guilty as charged in satisfaction of this offense andthree other pending charges. County Court thereafter granted defendant youthfuloffender status and sentenced him to time served and five years of probation. The Peopleappeal.
The People lack statutory authority to appeal from defendant's adjudication as ayouthful offender (see People vJoseph R., 17 NY3d 767, 768 [2011], appeal dismissed 87 AD3d 1041[2011]) and, instead, appeal pursuant to CPL 450.20 (4), contending that County Courterred in imposing a sentence less than that agreed upon without offering the People anopportunity to withdraw their consent to the waiver of indictment and the plea bargain.We disagree and affirm.
Although sentencing lies firmly within the trial court's discretion, the People must beoffered an opportunity to withdraw their consent to a plea agreement when a courtimposes a lower sentence than the parties had negotiated (see CPL 220.10 [3],[4]; People v Farrar, 52 [*2]NY2d 302, 307-308[1981]; see also People v Gustafson, 101 AD2d 920, 921 [1984]). As the Peopleassert, it has been established that they must also be allowed to withdraw consent when adefendant is granted youthful offender status upon remittal, after a sentencing courterroneously fails to consider whether to allow such treatment (see People vGannon, 162 AD2d 818, 819 [1990]).[FN*] The circumstances here, however, are readily distinguished from those presented inGannon; in that case, the court and the parties were apparently unaware of thedefendant's eligibility for youthful offender treatment when he entered his plea. Here, therecord reveals that the parties were all fully aware of defendant's eligibility in the courseof negotiating the plea agreement, and they expressly discussed and included thepossibility that he might receive youthful offender treatment in forging the agreement.During the plea hearing, County Court repeatedly confirmed that it had discretion togrant defendant youthful offender status, and that a reduced sentence might result if it didso. In a direct exchange with the prosecutor, the court stated that "the pleaagreement does give [the court] the discretion to impose youthful offender status"(emphasis added), and the prosecutor responded affirmatively. Immediately thereafter,the court advised defendant—with no objection from the People—thatwhether he would receive the sentence proposed in the plea agreement depended uponthe court's determination of his status as a youthful offender. In the course of thesediscussions and in a written submission, the People opposed allowing youthful offendertreatment, but their consent to the plea agreement was never conditioned upon denial ofsuch treatment, nor did they ever express any intention to withdraw consent in the eventthat such status was granted (compare People v Rudolph, 21 NY3d 497, 502 [2013];People v Ciccone, 91 AD2d 688, 689-690 [1982]). Moreover, after the courtannounced its determination, the People neither objected nor requested an opportunity towithdraw consent. Upon this record, we find that the risk that County Court might grantyouthful offender status to defendant was part of the bargain to which the People agreed,and they were not entitled to an opportunity to withdraw their consent thereafter.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: A sentencing court isrequired to consider whether to grant youthful offender status to an eligible defendant,even in circumstances where the defendant did not request such consideration or waivedit during plea bargaining (see CPL 720.20; People v Rudolph, 21 NY3d 497, 499 [2013]).