| People v Jones |
| 2020 NY Slip Op 02202 [182 AD3d 698] |
| April 9, 2020 |
| Appellate Division, Third Department |
[*1](April 9, 2020)
| The People of the State of New York,Respondent, v D'Andre Jones, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Spencer E. Lane of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered August 18, 2016, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a weapon in the second degree.
In February 2016, in a 35-count indictment returned against defendant and twoothers, defendant was charged with eight counts of criminal possession of a weapon inthe second degree and one count of manufacture, transport, disposition and defacementof weapons and dangerous instruments and appliances. The charges arose out ofdefendant's presence in a vehicle that was allegedly used in connection with a shootingthat occurred in August 2015, less than one month after defendant turned 16 years old,and law enforcement's subsequent discovery of several loaded handguns within thatvehicle. Pursuant to a negotiated plea deal, defendant pleaded guilty to one count ofcriminal possession of a weapon in the second degree in full satisfaction of all chargesagainst him in the indictment and waived his right to appeal, orally and in writing.Defendant entered his guilty plea with the understanding that County Court wouldsentence him to 3
Initially, we find that defendant's waiver of the right to appeal is valid. The recordreflects that defendant was advised that his waiver of the right to appeal was a conditionof the plea agreement, and defendant agreed to such condition. Additionally, at the timeof his plea, County Court adequately explained that the waiver of the right to appeal wasseparate and distinct from the rights that defendant was automatically forfeiting bypleading guilty, and defendant acknowledged that he understood. Further, defendantexecuted a written appeal waiver in open court, which he reviewed with counsel.Accordingly, upon review of the record, we are satisfied that defendant knowingly,voluntarily and intelligently waived his right to appeal (see People v Griffin, 177AD3d 1039, 1040 [2019], lv denied 34 NY3d 1078 [2019]; People v Boyette, 175 AD3d751, 752 [2019], lv denied 34 NY3d 979 [2019]).
Defendant also challenges County Court's determination to deny him youthfuloffender status. Where, as here, a "youth" has been convicted of an armed felony offense(see CPL 1.20 [41]; 720.10 [1], [2] [a]; Penal Law § 70.02 [1] [b]),he or she is eligible to be found a youthful offender if the sentencing court determinesthat one or more of the factors set forth in CPL 720.10 (3) are present—namely,whether there are "mitigating circumstances that bear directly upon the manner in whichthe crime was committed" or, if "the defendant was not the sole participant in the crime,[whether] the defendant's participation was relatively minor[,] although not so minor asto constitute a defense." In accordance with People v Middlebrooks (25 NY3d 516 [2015]), thesentencing court must "determine on the record whether the defendant is an eligibleyouth by considering the presence or absence of the [CPL 720.10 (3)] factors"(id. at 527). "If the court determines, in its discretion, that neither of the CPL720.10 (3) factors exist and states the reasons for that determination on the record, nofurther determination by the court is required" (id. at 528). If, however, the courtdetermines that the defendant is an eligible youth by virtue of the presence of one ormore of the CPL 720.10 (3) factors, the court must then proceed to the determination ofwhether the eligible youth is a youthful offender (see id. at 527-528; CPL 720.10[3]; 720.20 [1]). This latter determination involves the consideration of various factors,such as "the gravity of the crime and manner in which it was committed, mitigatingcircumstances, [the] defendant's prior criminal record, [the defendant's] prior acts ofviolence, recommendations in the presentence reports, [the] defendant's reputation, thelevel of cooperation with authorities, [the] defendant's attitude toward society and respectfor the law, and the prospects for rehabilitation and hope for a further constructive life"(People v Cruickshank, 105 AD2d 325, 334 [1985], affd sub nom. People vDawn Maria C., 67 NY2d 625 [1986]; see People v Price, 150 AD3d 1485, 1486 [2017], lvdenied 29 NY3d 1132 [2017]).
Although County Court expressly considered whether defendant was a youthfuloffender, it is unclear on this record whether it recognized that defendant pleaded guiltyto an armed felony offense (see Penal Law § 265.03 [1] [b]) andthat it was therefore required to first make—on the record—a determinationas to whether defendant was an eligible youth by considering the CPL 720.10 (3) factors.There is no reference at the time of the plea or at sentencing, or within the presentenceinvestigation report, to defendant having pleaded guilty to an armed felony offense.Additionally, there is no discussion or argument regarding the statutory factorsdeterminative of defendant's eligibility to be considered for youthful offender status.Thus, the record does not conclusively establish that County Court made the requisitethreshold eligibility determination (see People v Colon, 173 AD3d 1255, 1256-1257 [2019]).Regardless, even if County Court implicitly determined that defendant was an eligibleyouth, it failed to properly set forth that determination on the record, as required (see People v Lofton, 29 NY3d1097, 1098 [2017]; People v Middlebrooks, 25 NY3d at 527-528; People v Martz, 158 AD3d991, 992-993 [2018]; People v Daniels, 139 AD3d 1256, 1257-1258 [2016],lv denied 28 NY3d 1183 [2017]). Accordingly, although a valid appeal waiverwould ordinarily preclude a challenge to a sentencing court's youthful offenderdetermination (see People vSimmons, 159 AD3d 1270, 1271 [2018]), review of defendant's challenge is notprecluded here, given County Court's failure to make an on-the-record eligibilitydetermination (see People vPacherille, 25 NY3d 1021, 1023 [2015]).
Although this Court has the power to determine whether defendant is an eligibleyouth entitled to youthful offender status (see e.g. People v Marquis A., 145 AD3d 61, 68 [2016];People v Shrubsall, 167 AD2d 929, 930 [1990]), an exercise of such power is notappropriate here, as we cannot determine what was before County Court at the time ofsentencing.[FN1]Accordingly, we must vacate defendant's sentence and remit the matter to County Courtso that it can determine, in accordance with People v Middlebrooks (25 NY3d at527-528), whether defendant is an eligible youth and then, if necessary, whetherdefendant is a youthful offender (see CPL 720.10 [2], [3]; 720.20 [1]; People v Robertucci, 172AD3d 1782, 1783 [2019]).[FN2]
In light of our determination, defendant's challenge to the severity of his sentence hasbeen rendered academic.
Garry, P.J., Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Rensselaer County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1:On appeal, this Courtwas provided with an inaudible video recording of defendant's police interrogation,certain DNA reports and a codefendant's statement to police. Defendant's counsel stated,at oral argument, that these items were contained in County Court's "file." However,there is no indication on the record that these items were before County Court prior to orat the time of sentencing.
Footnote 2:We recognize thatCounty Court already engaged in the second step of the analysis and determined thatyouthful offender treatment was not appropriate. However, in our view, County Court'sdetermination as to whether defendant is an eligible youth could inform its assessment ofwhether defendant, if in fact an eligible youth, is a youthful offender under CPL 720.20.