| People v Charles S. |
| 2013 NY Slip Op 00362 [102 AD3d 896] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles S., Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Gretchen Robinson, and Suzanne H. Sullivan of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Grosso, J.), rendered July 28, 2010, convicting him of 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 ofjustice, the conviction is deemed vacated and replaced with a finding that the defendantis a youthful offender (see CPL 720.20 [3]), the sentence is vacated, and thematter is remitted to the Supreme Court, Queens County, for the imposition of sentencepursuant to Penal Law § 60.02 and for further proceedings in accordance withCPL 720.35.
Under the particular circumstances of this case, including the "age, experience andbackground" of the defendant (People v Seaberg, 74 NY2d 1, 11 [1989]), therewas not a knowing, voluntary, and intelligent waiver of the defendant's right to appeal.Therefore, review of the defendant's contention that he should have been affordedyouthful offender treatment is not precluded (see People v Franko, 98 AD3d 525 [2012]; People v David S., 78 AD3d1205 [2010]). Although the defendant did not fully comply with the requirementsimposed by the Supreme Court as conditions of receiving youthful offender treatment,the record nevertheless demonstrates, among other things, that the defendant madegenuine efforts to further his education, and to overcome his substance abuse problem,and that the residential drug treatment program in which the defendant was enrolledwanted to continue treating him. Thus, the Supreme Court should have granted thedefendant youthful offender status, as recommended by the Probation Department.
The defendant's remaining contention is without merit. Skelos, J.P., Balkin,Chambers and Miller, JJ., concur.