| People v Joseph R. |
| 2010 NY Slip Op 05591 [74 AD3d 1244] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JosephR., Respondent. |
—[*1] O'Sullivan & Zacchea PLLC, Kew Gardens, N.Y. (Daniel R. Demarco of counsel), forrespondent.
Appeal by the People from a judgment of the County Court, Suffolk County (Kahn, J.),rendered November 4, 2009, adjudicating the defendant a youthful offender, upon his plea ofguilty to use of a child in a sexual performance, and imposing sentence.
Ordered that the judgment is reversed, on the law, the youthful offender adjudication and thesentence imposed are vacated, and the case is remitted to the County Court, Suffolk County, forfurther proceedings consistent herewith.
A youth otherwise eligible to be classified as a youthful offender is ineligible for youthfuloffender treatment if he or she has previously been adjudicated a youthful offender following adetermination that he or she committed an act or acts defined as a felony (see CPL720.10 [2] [c]). "This restriction, relating to the eligible youth determination, is applicable at thetime of conviction" (People v Cecil Z., 57 NY2d 899, 901 [1982]). Since, at the time thatthe defendant pleaded guilty to use of a child in a sexual performance, he had previously beenadjudicated a youthful offender upon a determination that he committed an act or acts defined asa felony, he was not an eligible youth, and his youthful offender adjudication was unlawful, aswas his sentence. Accordingly, we reverse the judgment, vacate the youthful offenderadjudication and the sentence imposed, and remit the matter to the County Court, SuffolkCounty, for further proceedings on the indictment, which shall, among other things, afford thedefendant an opportunity to withdraw his plea of guilty.
There is no merit to the defendant's contentions regarding the viability of the People's appealand this Court's jurisdiction to entertain it. Fisher, J.P., Santucci, Miller and Lott, JJ., concur.