| People v Christopher D. |
| 2011 NY Slip Op 03628 [83 AD3d 1091] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Christopher D., Respondent. |
—[*1] Steve Fondulis, Port Jefferson, N.Y., for respondent.
Appeal by the People from a judgment of the County Court, Suffolk County (Kahn, J.),rendered January 7, 2010, adjudicating the defendant a youthful offender, upon his plea of guiltyto 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.
The defendant was adjudicated a youthful offender in 2008 in Suffolk County after hisconviction of a felony based on acts committed in May 2008. In 2009, he was charged byindictment with various crimes allegedly committed on April 1, 2008, before the commission ofthe acts that resulted in the 2008 youthful offender adjudication. He agreed to plead guilty to useof a child in a sexual performance (see Penal Law § 263.05), in full satisfaction ofthe indictment, in exchange for the specific sentence that was later imposed and adjudication as ayouthful offender. The People agreed to the sentence, which would not have been a lawfulsentence for use of a child in a sexual performance absent a youthful offender adjudication, andthey agreed that they would consent to the dismissal of the remaining counts of the indictment atsentencing. The People did not object at the time of the plea to youthful offender treatment.Nevertheless, at sentencing, the People objected to youthful offender treatment, but not to theimposition of the agreed-upon sentence. The People argued that the defendant was not eligiblefor youthful offender treatment because he had previously been adjudicated a youthful offender.The County Court nevertheless found that the defendant was a youthful offender and sentencedhim to the agreed-upon sentence. We reverse.
A "youth" otherwise eligible to be found a "youthful offender" is ineligible for thatclassification 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 CPL 720.10[2] [c]). "This restriction, relating to the eligible youth determination, is applicable at the time ofconviction" (People v Cecil Z., 57 NY2d 899, 901 [1982]). Inasmuch as, 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 [*2]committed an act or acts defined as a felony, he was not an "eligibleyouth," and his youthful offender adjudication was unlawful, as was his sentence (see Peoplev Joseph R., 74 AD3d 1244, 1244-1245 [2010], lv granted 15 NY3d 921 [2010]).Accordingly, we reverse the judgment, vacate the youthful offender adjudication and the sentenceimposed, and remit the matter to the County Court, Suffolk County, for further proceedings onthe indictment, which shall, among other things, afford the defendant an opportunity to withdrawhis 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 (id. at 1245). Dillon, J.P., Florio, Balkin andEng, JJ., concur.