| People v David S. |
| 2010 NY Slip Op 08971 [78 AD3d 1205] |
| November 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidS., Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R.Donhauser, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango,J.), rendered November 26, 2008, convicting him of attempted robbery in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, theconviction is deemed vacated and replaced with a finding that the defendant is a youthfuloffender (see CPL 720.20 [3]), the sentence is vacated, and the matter is remitted to theSupreme Court, Kings County, for further proceedings in accordance with CPL 720.35.
The record is insufficient to demonstrate that the defendant knowingly, voluntarily, andintelligently waived his right to appeal (see People v DeSimone, 80 NY2d 273, 283[1992]; People v Bradshaw, 76 AD3d 566 [2010]; People v Shoman, 74 AD3d843 [2010], lv denied 15 NY3d 809 [2010]; People v Gladden, 267 AD2d 400[1999]; People v Dongo, 244 AD2d 353 [1997]). Accordingly, the defendant's purportedwaiver of his right to appeal does not preclude review of his contention that the Supreme Courtshould have afforded him youthful offender treatment. Furthermore, the defendant sufficientlypreserved his claim for youthful offender treatment by raising the issue at sentencing (seePeople v Gomez, 60 AD3d 782, 783 [2009]; People v Murray, 57 AD3d 921 [2008],affd 15 NY3d 725 [2010]; cf. People v Ficchi, 64 AD3d 1195 [2009]; Peoplev Warde, 45 AD3d 879, 880 [2007]). We agree with the defendant's contention that, underthe circumstances, his request for youthful offender treatment should have been granted. Fisher,J.P., Angiolillo, Belen and Austin, JJ., concur.