| People v Calkins |
| 2014 NY Slip Op 04977 [119 AD3d 975] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vMitchel A. Calkins, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 9, 2008, convicting defendant upon his plea of guiltyof the crime of possessing a sexual performance by a child.
In September 2008, defendant pleaded guilty to possessing a sexual performance bya child. As part of the plea deal, which included other potential charges, defendant, whowas then 16 years old, agreed that he would not receive youthful offender status. He wassentenced consistent with the plea agreement in December 2008, receiving six months injail, 10 years of probation and being denied youthful offender status. After a protracteddelay, defendant perfected his appeal arguing that the recent case of People v Rudolph (21 NY3d497 [2013]) requires reversal of his sentence.
In People v Rudolph (supra), the Court of Appeals, overrulingprecedent, held that the statutory command in CPL 720.20 (1) that the sentencing courtaddress youthful offender status when a defendant is eligible for such status "cannot bedispensed with, even where defendant has failed to ask to be treated as a youthfuloffender, or has purported to waive his or her right to make such a request" (id. at499). When addressing such status, the sentencing court should set forth factorsconsidered in its determination (see People v Cruickshank, 105 AD2d 325, 334[1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]),particularly when denying youthful offender status (see People v Mattis, 46 AD3d 929, 932 [2007]; see alsoPeople v Bell, [*2]94 AD3d 1569, 1570 [2012],lv denied 19 NY3d 970 [2012]; People v Malave, 179 AD2d 419,419-420 [1992], lv denied 79 NY2d 950 [1992]).
The People advance two arguments in support of their contention thatRudolph does not control this appeal, neither of which has merit. First, they assertthat, since the sentence was consistent with prevailing precedent when imposed (seee.g. People v McGowen, 42 NY2d 905, 906 [1977]), the holding in Rudolphshould not be applied retroactively. However, notwithstanding the lengthy delay inperfecting this appeal, this case is before us on direct appeal—not a collateralattack—and the law as it now exists controls (see People v Rudolph, 21NY3d at 502; see also People vSnyder, 91 AD3d 1206, 1211 [2012], lv denied 19 NY3d 968 [2012],cert denied 568 US &mdash, 133 S Ct 791 [2012]; People v George, 43 AD3d560, 562 [2007], affd 11 NY3d 848 [2008]).
The People also contend that "everything in the history of this case compels theconclusion that waiver [by defendant of youthful offender status] under all the facts andcircumstances of this case was fair [and] equitable, well reasoned and the onlydetermination that a litigant in [defendant's] position would rationally make." Evenassuming such contention is correct, People v Rudolph (21 NY3d at 499)requires the sentencing court to independently make the youthful offender determinationregardless of whether a defendant purported to waive his or her right to such status aspart of a favorable plea or for any other reason. Here, although County Court stated thatdefendant was denied youthful offender status, this followed immediately after hiscounsel acknowledged on the record that, as part of the plea, defendant "was not going toget [youthful offender status]." There is no indication that County Court gave anyindependent consideration to youthful offender status nor is there any discussion by thecourt of factors pertinent to such status at the time of its denial. Accordingly, thesentence must be vacated and the matter remitted for resentencing (see e.g. People v Smith, 113AD3d 453, 454 [2014]; People v Pacheco, 110 AD3d 927, 927 [2013]).
Stein, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of St.Lawrence County for resentencing; and, as so modified, affirmed.