| People v Pacheco |
| 2013 NY Slip Op 06716 [110 AD3d 927] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jose Pacheco, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County(R. Doyle, J.), both rendered August 25, 2010, convicting him of gang assault in the firstdegree, conspiracy in the fourth degree, and attempted assault in the second degree as ahate crime (two counts) under indictment No. 3032/08, and attempted assault in thesecond degree as a hate crime under indictment No. 236/09, upon his pleas of guilty, andimposing sentences.
Ordered that the judgments are modified, on the law, by vacating the sentencesimposed; as so modified, the judgments are affirmed, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings consistent herewith.
Contrary to the People's contention, the defendant's claim that the Supreme Courtfailed to consider youthful offender treatment is not precluded by his general waiver ofthe right to appeal or his failure to properly raise this issue at sentencing (see People v Rudolph, 21NY3d 497 [2013]). The sentencing court failed to adequately place on the record itsreasons for denying the defendant youthful offender status (see People v Rivera, 27 AD3d491 [2006]; People v Martinez, 301 AD2d 615, 616 [2003]; People vMiles, 244 AD2d 433 [1997]). Therefore, the defendant's sentences must be vacatedand the matter remitted to the Supreme Court, Suffolk County, for resentencing afterdetermining whether the defendant should be sentenced as a youthful offender. Weexpress no opinion as to whether the Supreme Court should afford youthful offenderstatus to the defendant.
The defendant's remaining contentions have been rendered academic in light of ourdetermination. Dillon, J.P., Leventhal, Chambers and Miller, JJ., concur.