| People v Flagg |
| 2013 NY Slip Op 07638 [111 AD3d 1438] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vNathaniel Flagg, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered February 24, 2010. The judgment convicted defendant, upon his plea of guilty,of robbery in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon his plea ofguilty of robbery in the second degree (Penal Law § 160.10 [2] [b]), defendantcontends that County Court erred in failing to rule on his applications to be adjudicated ayouthful offender. Defendant, an apparently eligible youth (see CPL 720.10 [2]),pleaded guilty pursuant to a plea bargain that included a promised sentence and a waiverof the right to appeal, but there was no mention during the plea proceedings whether hewould be afforded youthful offender treatment. At sentencing, defense counsel madeseveral applications for youthful offender treatment but, without expressly ruling onthem, the court imposed a sentence that was incompatible with youthful offendertreatment.
"Upon conviction of an eligible youth, the court must order a [presentence]investigation of the defendant. After receipt of a written report of the investigation and atthe time of pronouncing sentence the court must determine whether or not the eligibleyouth is a youthful offender" (CPL 720.20 [1]). A sentencing court must determinewhether to grant youthful offender treatment with respect to every defendant who iseligible for it because, inter alia, "[t]he judgment of a court as to which young peoplehave a real likelihood of turning their lives around is just too valuable, both to theoffender and to the community, to be sacrificed in plea bargaining" (People v Rudolph, 21 NY3d497, 501 [2013]). "[W]e cannot deem the court's failure to rule on the. . . [applications] as . . . denial[s] thereof" (People v Spratley, 96 AD3d1420, 1421 [2012], following remittal 103 AD3d 1211 [2012], lvdenied 21 NY3d 1020 [2013]; see People v Ingram, 18 NY3d 948, 949 [2012]; People v Chattley, 89 AD3d1557, 1558 [2011]). Furthermore, even if the court had denied the applications, thereis no information in this record from which we could ascertain whether the courtproperly did so in the exercise of its discretion, or whether it improperly acceded to theprosecutor's plea conditions. We therefore hold the case and remit the matter to CountyCourt to make and state for the record "a determination of whether defendant is ayouthful offender" (Rudolph, 21 NY3d at 503). Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.