| People v Smith |
| 2014 NY Slip Op 00192 [113 AD3d 453] |
| January 14, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Geoffrey Smith, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel),for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedJuly 19, 2011, convicting defendant, upon his plea of guilty, of attempted murder in thesecond degree, assault in the first degree (three counts), and criminal possession of aweapon in the second degree (two counts), and sentencing him to a term of eight years,followed by five years of postrelease supervision, unanimously modified, on the law, tothe extent of vacating the sentence and remanding for resentencing.
Defendant negotiated a plea bargain under which the maximum sentence he wouldreceive was 10 years plus five years' postrelease supervision. At sentencing, the courtindicated that it had considered all information submitted to it. This included apresentence report that recommended that defendant be sentenced as promised, eventhough he was eligible for youthful offender treatment (CPL 720.10).
During the pendency of this appeal, the Court of Appeals determined that CPL720.20 (1) requires "that there be a youthful offender determination in every case wherethe defendant is eligible, even where the defendant fails to request it, or agrees to forgo itas part of a plea bargain" (People v Rudolph, 21 NY3d 497, 501 [2013]). Although itis clear that the court did not believe that defendant was entitled to youthful offendertreatment, it did not make an explicit determination on the record when it sentenceddefendant to concurrent eight-year terms. Because defendant is entitled underRudolph to an express determination by the court as to whether [*2]youthful offender treatment should be granted, his sentencemust be vacated (id.; seePeople v Tyler, 110 AD3d 745 [2d Dept 2013]). Since we are ordering a newsentencing proceeding, we find it unnecessary to address defendant's other arguments.Concur—Sweeny, J.P., Renwick, Andrias, Freedman and Feinman, JJ.