| People v Potter |
| 2014 NY Slip Op 00825 [114 AD3d 1183] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vPatrick D. Potter, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered August 6, 2012. The judgment convicted defendant, upon his plea of guilty, ofattempted sexual abuse in the first degree (two counts).
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Cattaraugus County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon his plea ofguilty of two counts of attempted sexual abuse in the first degree (Penal Law§§ 110.00, 130.65 [3]), defendant contends that County Court erred infailing to rule on his applications to be adjudicated a youthful offender. Defendant, aneligible youth, pleaded guilty pursuant to a plea bargain that included a promisedsentence and a waiver of the right to appeal. There was no mention during the pleaproceedings whether he would be afforded youthful offender treatment. At sentencing,defense counsel made several applications for defendant to be treated as a youthfuloffender, but the court did not expressly rule on them; instead, the court imposed asentence that was incompatible with youthful offender treatment.
"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 status to every defendant who is eligible for itbecause, inter alia, "[t]he judgment of a court as to which young people have a reallikelihood of turning their lives around is just too valuable, both to the offender and tothe community, to be sacrificed in plea bargaining" (People v Rudolph, 21 NY3d 497, 501 [2013]). "[W]ecannot deem the court's failure to rule on the . . . [applications] as. . . denial[s] 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]).Furthermore, even if the court had denied the applications, there is no information in therecord from which we could ascertain whether the court properly did so in the exercise ofits discretion, or whether it improperly acceded to the prosecutor's plea conditions. Wetherefore hold the case and remit the matter to County Court to make and state for therecord a determination whether defendant should be granted youthful [*2]offender status (see Rudolph, 21 NY3d at 503).Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.