| People v Ramirez |
| 2014 NY Slip Op 02088 [115 AD3d 992] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Geremia Ramirez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Christine DiSalvo, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from a sentence of the SupremeCourt, Queens County (Chin-Brandt, J.), imposed December 5, 2012, upon hisconviction of attempted murder in the second degree, upon his plea of guilty.
Ordered that the sentence is reversed, on the law, and the matter is remitted to theSupreme Court, Queens County, for further proceedings consistent herewith.
CPL 720.20 (1) requires "that there be a youthful offender determination in everycase where the defendant is eligible, even where the defendant fails to request it, oragrees to forgo it as part of a plea bargain" (People v Rudolph, 21 NY3d 497, 501 [2013]). Here, as thePeople correctly concede, the record does not demonstrate that the Supreme Courtconsidered the defendant's eligibility for youthful offender status (see People v Rivera, 27 AD3d491 [2006]; People v Martinez, 301 AD2d 615, 616 [2003]). Thedefendant's eligibility was not affected by a prior conviction of robbery in the seconddegree, as eligibility for youthful offender status is met at the time of conviction, not atthe time of sentencing (see People v Cecil Z., 57 NY2d 899, 901 [1982]), and, onthe date the defendant pleaded guilty to attempted murder in the second degree, he hadnot been "convicted and sentenced for a felony" so as to disqualify him pursuant to CPL720.10 (2) (b) (see People v Mosley, 88 AD2d 520 [1982]). The defendant'sclaim also is not precluded by his waiver of the right to appeal (see People v Pacheco, 110AD3d 927 [2013]; People vTyler, 110 AD3d 745 [2013]). Accordingly, the defendant's sentence must bereversed and the matter remitted to the Supreme Court, Queens County, for resentencingafter determining whether the defendant should be adjudicated a youthful offender. Weexpress no opinion as to whether the Supreme Court should afford youthful offenderstatus to the defendant. Eng, P.J., Dillon, Maltese and Duffy, JJ., concur.