| People v Quinones |
| 2015 NY Slip Op 05387 [129 AD3d 1699] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLuis Quinones, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered August 10, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him, upon hisplea of guilty, of two counts of criminal possession of a weapon in the second degree(Penal Law § 265.03). We agree with defendant that County Court erred infailing to determine whether he should be afforded youthful offender status (see People v Rudolph, 21NY3d 497, 501 [2013]). Defendant was convicted of an armed felony offense, andthe court therefore was required "to determine on the record whether the defendant is aneligible youth by considering the presence or absence of the factors set forth in CPL720.10 (3) . . . [and] make such a determination on the record" (People vMiddlebrooks, 25 NY3d 516, 527 [2015]).Inasmuch as the court failed to do so here, we hold the case, reserve decision, and remitthe matter to County Court to make and state for the record "a determination of whetherdefendant is a youthful offender" (Rudolph, 21 NY3d at 503).
We also agree with defendant that his waiver of the right to appeal is not valid. Thecourt informed defendant that, if he failed to sign a written waiver of the right to appeal,it would not be bound to honor the sentence promise of two consecutive five-year termsof incarceration and could impose up to the maximum sentence on him, i.e., a term ofincarceration of 15 years. We conclude that the court thereby threatened defendant with agreater term of incarceration in the event that defendant did not sign the waiver, thusrendering the court's colloquy concerning the waiver impermissibly coercive (see People v Trinidad-Ayala,114 AD3d 1229, 1229 [2014], lv denied 23 NY3d 1044 [2014]). Wenevertheless reject defendant's contention that the sentence was harsh and excessive.
All concur, Fahey, J., not participating. Present—Centra, J.P., Fahey,Valentino, Whalen and DeJoseph, JJ.