| People v Hall |
| 2014 NY Slip Op 05071 [119 AD3d 1349] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vBrandon S. Hall, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedApril 22, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary inthe first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him, upon hisguilty plea, of burglary in the first degree (Penal Law § 140.30 [2]). Byfailing to move to withdraw his plea of guilty or to vacate the judgment of conviction,defendant failed to preserve for our review his challenge to the factual sufficiency of theplea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Hawkins, 94 AD3d1439, 1440 [2012], lv denied 19 NY3d 974 [2012]). Contrary to defendant'scontention, this case does not fall within the narrow exception to the preservationrequirement because nothing in the plea allocution "clearly casts significant doubt uponthe defendant's guilt or otherwise calls into question the voluntariness of the plea"(Lopez, 71 NY2d at 666; see People v Moorer, 63 AD3d 1590, 1590-1591 [2009],lv denied 13 NY3d 837 [2009]).
As defendant further contends and the People correctly concede, however, the courterred in failing to determine whether defendant should be afforded youthful offenderstatus. Defendant, an eligible youth, pleaded guilty pursuant to a plea bargain thatincluded a promised sentence. There was no mention during the plea proceedingswhether defendant would be adjudicated a youthful offender. "Upon conviction of aneligible youth, the court must order a [presentence] investigation of the defendant. Afterreceipt of a written report of the investigation and at the time of pronouncing sentencethe court must determine whether or not the eligible youth is a youthful offender" (CPL720.20 [1]). The sentencing court must make "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]; see People v Scott, 115 AD3d1342, 1343 [2014]; Peoplev Smith, 112 AD3d 1334, 1334 [2013]). We therefore hold the case, reservedecision on any issues not addressed herein, and remit the matter to County Court tomake and state for the record "a determination of whether defendant is a youthfuloffender" (Rudolph, 21 NY3d at 503). Present—Centra, J.P., Fahey,Peradotto, Sconiers and DeJoseph, JJ.