| People v Brownell |
| 2013 NY Slip Op 06180 [109 AD3d 1172] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CaseyBrownell, Appellant. |
—[*1]
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered June 10, 2011. The judgment convicted defendant, upon his plea of guilty, ofburglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed, and thematter is remitted to Wayne County Court for resentencing in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon his plea ofguilty of burglary in the first degree (Penal Law § 140.30 [2]), defendant contendsthat County Court erred in failing to determine whether he was eligible for youthfuloffender status. We agree. There was no mention of defendants eligibility for youthfuloffender status during the plea, and defense counsel noted at sentencing that, althoughdefendant was eligible for such status, "we are all aware of what is set out in the Pre-PleaInvestigation in that regard, and he understands that [it] is not part of the pleaagreement."
"After receipt of a written report of the [preplea or presentence] investigation and atthe time of pronouncing sentence the court must determine whether or not the eligibleyouth is a youthful offender" (CPL 720.20 [1]). In People v Rudolph (21 NY3d497 [2013]), the Court of Appeals held that section 720.20 mandates that, when thesentence is imposed, the sentencing court must determine whether to grant youthfuloffender status to every defendant who is eligible for it. The Court of Appeals stated that"[t]he judgment of a court as to which young people have a real likelihood of turningtheir lives around is just too valuable, both to the offender and to the community, to besacrificed in plea bargaining" (id. at 501). Here, although defense counsel's statements unequivocally established that adetermination had been made not to afford defendant youthful offender status, it isunclear whether that determination was made by the court, as required by section 720.20,rather than by the prosecutor. Consequently, we modify the judgment by vacating thesentence, and we remit the matter to County Court to determine and to state for therecord "whether defendant is a youthful offender" (Rudolph, 21 NY3d at502).
We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.