| People v Brooks |
| 2014 NY Slip Op 06100 [120 AD3d 1255] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyre Brooks, Appellant. |
Lynn W. L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County(Foley, J.), rendered September 20, 2010, convicting him of attempted robbery in thesecond degree, upon his plea of guilty, and imposing sentence, and (2) by permission,from an order of the same court entered March 7, 2013, which denied his motionpursuant to CPL 440.10 to vacate the judgment of conviction.
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear anddetermine whether the defendant should be afforded youthful offender treatment, and theappeals are held in abeyance in the interim.
The defendant's purported general waiver of his right to appeal was invalid (see People v Curras, 105 AD3d973 [2013]). In any event, the defendant's claim that the Supreme Court failed toconsider youthful offender treatment is not barred by a general waiver of the right toappeal (see People vRudolph, 21 NY3d 497, 501 [2013]; People v Pacheco, 110 AD3d 927 [2013]). Nor was itbarred by his failure to properly raise the issue at sentencing, or by his plea agreement(see People v Rudolph, 21 NY3d at 501; People v Pacheco, 110 AD3d at927).
Pursuant to CPL 720.20 (1) "at the time of pronouncing sentence the court mustdetermine whether or not the eligible youth is a youthful offender." That determinationwas not made in this case. As the People correctly concede, the sentencing court shouldhave considered and determined whether the defendant should be treated as a youthfuloffender.
Generally, under such circumstances, the sentence is vacated, and the matter remittedto the sentencing court for resentencing after determining whether the defendant shouldbe treated as a youthful offender (see People v Ramirez, 115 AD3d 992 [2014]; People v Smith, 113 AD3d453 [2014]; People vPacheco, 110 AD3d 927 [2013]; People v Tyler, 110 AD3d 745 [2013]; People v Brownell, 109 AD3d1172 [2013]). However, in this case, the defendant has served his sentence. Underthese circumstances, we remit the matter to the Supreme Court, Kings County, todetermine whether the defendant should be afforded youthful offender treatment, andhold the appeals in abeyance in the interim (see People v Scott, 115 AD3d 1342 [2014]; People v Potter, 114 AD3d1183 [2014]; People vFlagg, 111 AD3d 1438 [2013]).
[*2] We reach no other issue at this juncture. Mastro, J.P., Dickerson, Hinds-Radix andDuffy, JJ., concur.