| People v Smith |
| 2013 NY Slip Op 08718 [112 AD3d 1334] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnSmith, Appellant. |
—[*1] John Smith, defendant-appellant pro se. Richard M. Healy, District Attorney, Lyons (Jacqueline McCormick of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered June 7, 2011. The judgment convicted defendant, upon his plea of guilty, ofburglary in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Wayne County Court for further proceedings 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 adjudicate him a youthful offender. We note at theoutset that the People do not dispute defendant's assertion that he is a "youth. . . eligible to be found a youthful offender" (CPL 720.10 [2]). "Uponconviction of an eligible youth, the court must order a [presentence] investigation of thedefendant. After receipt of a written report of the investigation and at the time ofpronouncing sentence the court must determine whether or not the eligible youth is ayouthful offender" (CPL 720.20 [1]; see People v Rudolph, 21 NY3d 497, 503 [2013]). Here,despite defendant's application during the plea colloquy to be found an eligible youth, thecourt failed to address the issue of defendant's eligibility during the sentencingproceeding. Furthermore, "we cannot deem the court's failure to rule on the. . . [application] as a denial thereof" (People v Spratley, 96 AD3d 1420, 1421 [2012],following remittal 103 AD3d 1211 [2013], lv denied 21 NY3d 1020[2013]; see People vIngram, 18 NY3d 948, 949 [2012]; People v Chattley, 89 AD3d 1557, 1558 [2011]). Wetherefore hold the case, reserve decision, and remit the matter to County Court to makeand state for the record "a determination of whether defendant is a youthful offender"(Rudolph, 21 NY3d at 503). Present—Smith, J.P., Fahey, Carni, Valentinoand Whalen, JJ.