| People v T.E. |
| 2015 NY Slip Op 06827 [131 AD3d 1067] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v T.E., Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel; Gregory Musso and Robert Ho on the brief), forrespondent.
Motion by the appellant, in effect, to recall and vacate a decision and order of thisCourt dated March 4, 2015 (126 AD3d 721 [2015]), which determined an appeal from ajudgment of the Supreme Court, Kings County (DiMango, J.), rendered May 30, 2012,and to amend the caption to make it anonymous.
Upon the papers filed in support of the motion and the papers filed in relationthereto, it is
Ordered that the motion is granted, the decision and order of this Court dated March4, 2015, is recalled and vacated, the caption is amended, and the following decision andorder is substituted for the prior decision and order:
Appeal by the defendant from a judgment of the Supreme Court, Kings County(DiMango, J.), rendered May 30, 2012, convicting him of sexual abuse in the first degreeand endangering the welfare of a child, upon his plea of guilty, and imposingsentence.
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 Brown, 122 AD3d 133 [2014]; see also People v Cantarero,123 AD3d 841 [2014]). In any event, the defendant's contention that the SupremeCourt failed to consider whether to afford him youthful offender treatment is not barredby a general waiver of the right to appeal (see People v Brooks, 120 AD3d 1255 [2014]; People v Malcolm, 118 AD3d447 [2014]; People vRamirez, 115 AD3d 992, 992 [2014]; People v Pacheco, 110 AD3d 927 [2013]; People v Tyler, 110 AD3d745, 746 [2013]). In Peoplev Rudolph (21 NY3d 497, 499 [2013]), the Court of Appeals held thatcompliance with CPL 720.20 (1), which provides that the sentencing court "must"determine whether an eligible defendant is to be treated as a youthful offender, "cannotbe dispensed with, even where defendant has failed to ask to be treated as a youthfuloffender, or has purported to waive his or her right to make such a request." Compliancewith CPL 720.20 (1) requires that the sentencing court actually consider and [*2]make an independent determination of whether an eligibleyouth is entitled to youthful offender treatment (see People v Calkins, 119 AD3d 975 [2014]; People v Malcolm, 118 AD3d447 [2014]; People vTyler, 110 AD3d 745 [2013]; see also People v Then, 121 AD3d 1025 [2014]; People v Pacheco, 110 AD3d927 [2013]). Here, the Supreme Court stated that "[t]here is no youthful offenderadjudication" when it imposed sentence in accordance with the defendant's pleaagreement. However, the court did not place on the record any reason for notadjudicating the defendant a youthful offender, and there is nothing in the record toindicate that it actually independently considered youthful offender treatment instead ofdenying such treatment because it was not part of the plea agreement. Under thesecircumstances, we vacate the defendant's sentence, and remit the matter to the SupremeCourt, Kings County, for a determination of whether the defendant should be affordedyouthful offender treatment. Eng, P.J., Austin, Cohen and Barros, JJ., concur.