| People v Tyler |
| 2013 NY Slip Op 06394 [110 AD3d 745] |
| October 2, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kristen Tyler, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan ofcounsel), for respondent.
Appeal by the defendant, as limited by her motion, from a sentence of the CountyCourt, Suffolk County (Hudson, J.), imposed March 7, 2011, on the ground that thesentence was excessive.
Ordered that the sentence is reversed, on the law, and the matter is remitted to theCounty Court, Suffolk County, for further proceedings consistent herewith.
At the plea proceeding, the defendant agreed to plead guilty to attempted burglary inthe second degree in exchange for a sentence of time served and a five-year period ofprobation, and no additional term of imprisonment. The defendant's eligibility foryouthful offender treatment was not clear at the time of the plea proceeding. The CountyCourt informed the defendant that the People were reserving the right to withdraw theirconsent to the plea agreement if she was later deemed to be eligible for youthful offenderstatus, in which case the court indicated that it "would withdraw [the defendant's] plea,"and "reinstate [her] not guilty plea." The Department of Probation ultimately reported tothe court in the presentence investigation report that the defendant was eligible foryouthful offender treatment. However, at sentencing, the court stated that there was "anagreement" that the defendant "was not to receive youthful offender treatment," to whichdefense counsel, replied: "That is the agreement, yes." The court thereafter imposed asentence of a five-year period of probation.
The defendant's waiver of the right to appeal does not encompass her contention thatthe County Court erred in failing to consider youthful offender treatment (see Peoplev Rudolph, 21 NY3d 497 [2013]). The County Court imposed sentence withoutregard to the defendant's eligibility for youthful offender status based upon its mistakenimpression that there was "an agreement" that the defendant "was not to receive youthfuloffender treatment." In any event, CPL 720.20 (1) requires "that there be a youthfuloffender determination in every case where the defendant is eligible, even where thedefendant fails to request it, or agrees to forego it as part of a plea bargain" (People vRudolph, 21 NY3d 497, 501 [2013]). Accordingly, we vacate the defendant'ssentence and remit the matter to the County Court, Suffolk County, for a determinationof whether the defendant is a youthful offender (see id.). Eng, P.J., Skelos,Roman and Cohen, JJ., concur.