| People v Stevens |
| 2015 NY Slip Op 02794 [127 AD3d 791] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Elijah Stevens, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Heidi Bota of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and JodiL. Mandel of counsel; Robert Ho on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gubbay, J.), rendered September 11, 2012, convicting him of assault in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings consistent herewith.
The defendant's general waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Brown, 122 AD3d133, 137 [2014]). In any event, the defendant's contention that the Supreme Courtfailed to consider whether to afford him youthful offender treatment is not barred by ageneral waiver of the right to appeal (see People v Brooks, 120 AD3d 1255, 1256 [2014]; People v Malcolm, 118 AD3d447 [2014]; People vRamirez, 115 AD3d 992, 993 [2014]; People v Pacheco, 110 AD3d 927 [2013]; People v Tyler, 110 AD3d745, 746 [2013]).
In People v Rudolph(21 NY3d 497, 499 [2013]), the Court of Appeals held that compliance with CPL720.20 (1), which provides that the sentencing court "must" determine whether aneligible defendant is to be treated as a youthful offender, "cannot be dispensed with, evenwhere defendant has failed to ask to be treated as a youthful offender, or has purported towaive his or her right to make such a request." Compliance with CPL 720.20 (1) requiresthe sentencing court to actually consider and make an independent determination ofwhether an eligible youth is entitled to youthful offender treatment (see People v Evans, 126 AD3d721 [2d Dept 2015]; Peoplev Calkins, 119 AD3d 975 [2014]; People v Malcolm, 118 AD3d at 447;People v Tyler, 110 AD3d at 746; see also People v Then, 121 AD3d 1025, 1026 [2014];People v Pacheco, 110 AD3d at 927).
Here, the Supreme Court failed to adequately place on the record its reasons fordenying the defendant youthful offender status. Under these circumstances, we vacate thedefendant's sentence, and remit the matter to the Supreme Court, Kings County, for adetermination of whether the defendant should be afforded youthful offender treatment.We express no opinion as to whether the Supreme Court should afford youthful offendertreatment to the defendant.
[*2] In light ofour determination, we need not reach the defendant's remaining contention. Rivera, J.P.,Sgroi, Maltese and LaSalle, JJ., concur.