| People v Minemier |
| 2015 NY Slip Op 00171 [124 AD3d 1408] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKevin M. Minemier, Appellant. (Appeal No. 1.) |
Easton Thompson Kasperek Shiffrin, LLP, Rochester (Donald M. Thompson ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered January 20, 2012. The judgment convicted defendant, upon his plea of guilty,of attempted murder in the second degree, assault in the first degree (two counts) andassault in the second 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 pleaded guilty to an indictment charging him withattempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]), two counts of assault in the first degree (§ 120.10 [1], [4]), and onecount of assault in the second degree (§ 120.05 [4]), in return for a promisefrom County Court that his aggregate sentence of imprisonment would not exceed 20years. Defendant committed the crimes when he was 18 years old and, because he wasnot convicted of an armed felony (see CPL 1.20 [41]), he was eligible foryouthful offender treatment (see CPL 720.10 [2]). The court imposed concurrentsentences, the greatest of which is a 20-year determinate term of incarceration plus aperiod of postrelease supervision, but, as the People correctly concede, the court erred infailing to determine whether defendant should be adjudicated a youthful offender. Thus,on defendant's appeal from the judgment of conviction in appeal No. 1, we hold the case,reserve decision and remit the matter to County Court "to make and state for the record adetermination whether defendant should be granted youthful offender status" (People v Potter, 114 AD3d1183, 1184 [2014]; seePeople v Rudolph, 21 NY3d 497, 503 [2013]). Defendant raises no contentionwith respect to the amended sentence in appeal No. 2, which added restitution, and wetherefore dismiss the appeal therefrom.
Defendant further contends in appeal No. 1 that his sentence should be vacatedbecause the court reviewed written submissions from the victims and refused defensecounsel's request for disclosure of those statements. Although it is clear from the recordthat the court reviewed written statements that were not disclosed to defendant, thosestatements are not included in the record on appeal, and we therefore cannot address themerits of defendant's contention. We further direct the court, upon remittal, to make arecord of what statements it reviewed and to state its reasons for refusing to disclosethem to defendant. Finally, we reject defendant's contention that the court abused itsdiscretion in allowing the parents of one of the victims to speak at sentencing (seegenerally People v Hemmings, 2 NY3d 1, 6-7 [2004], rearg denied 2 NY3d824 [2004]; People vRabsatt, 70 AD3d 863, 863 [2010], lv denied 14 NY3d 891 [2010];People v Iovinella, 295 AD2d 753, 753 [2002], lv denied 99 NY2d 536[2002]). Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.