| People v Flores |
| 2014 NY Slip Op 02884 [116 AD3d 644] |
| April 29, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v John A. Flores, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J., at plea;Ronald A. Zweibel, J., at sentencing), rendered August 9, 2012, convicting defendant ofattempted assault in the first degree, and sentencing him to a term of nine years,unanimously modified, on the law, to the extent of vacating the sentence and remandingfor resentencing.
The Court of Appeals has determined that CPL 720.20 (1) requires "that there be ayouthful offender determination in every case where the defendant is eligible, evenwhere the defendant fails to request it, or agrees to forego it as part of a plea bargain" (People v Rudolph, 21 NY3d497, 501 [2013]). Although defendant was convicted of an armed felony, he stillcould have received a youthful offender adjudication if the court had made the applicablefindings under CPL 720.10 (3). As the Court noted in Rudolph, there may be"cases in which the interests of the community demand that youthful offender treatmentbe denied, and that the young offender be sentenced like any other criminal;. . . but the court must make the decision in every case" (21 NY3d at 501).Thus, because defendant was eligible for youthful offender consideration, if any of thefactors in CPL 720.10 (3) were found to exist, the court had to make a determinationeven though defendant did not request it. In reaching this decision, we respectfullydisagree with the opinion of the Third Department in People v Woullard (115 AD3d 1053 [3d Dept 2014]),which reached the opposite conclusion.
Although it may be, as the People argue, that the facts of the case do not warrantyouthful [*2]offender treatment, that is for the trial courtto determine. Since we are ordering a new sentencing proceeding, we find it unnecessaryto address defendant's other arguments. Concur—Friedman, J.P., Renwick,Moskowitz, Richter and Feinman, JJ.