| People v Ayende |
| 2015 NY Slip Op 08427 [133 AD3d 771] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Felix Ayende, Appellant. (Appeal No. 1.) The People of the Stateof New York, Respondent, v Felix Ayende, Also Known as J, Appellant. (Appeal No.2.) |
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), forappellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Dutchess County(Greller, J.), both rendered August 7, 2014, convicting him of criminal contempt in thefirst degree (two counts) under indictment No. 67/12, and robbery in the first degreeunder indictment No. 135/12, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are modified, on the law, by vacating the sentencesimposed; as so modified, the judgments are affirmed, and the matter is remitted to theCounty Court, Dutchess County, for further proceedings consistent herewith.
Criminal Procedure Law § 720.20 (1) requires "that there be a youthfuloffender determination in every case where the defendant is eligible, even where thedefendant fails to request it, or agrees to forego it as part of a plea bargain" (People v Rudolph, 21 NY3d497, 501 [2013]). Here, as the People correctly concede, the record does notdemonstrate that the County Court considered whether the defendant should be affordedyouthful offender status (seePeople v Spitzer, 130 AD3d 657, 658 [2015]; People v Joshua B., 126 AD3d717, 718 [2015]; People vThen, 121 AD3d 1025, 1026 [2014]). Accordingly, the defendant's sentencesmust be vacated and the matter remitted to the County Court, Dutchess County, forresentencing after a determination as to whether the defendant should be affordedyouthful offender status. We express no opinion as to whether the County Court shouldafford youthful offender status to the defendant.
The defendant's remaining contention has been rendered academic in light of ourdetermination. Balkin, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.