| People v Eric P. |
| 2016 NY Slip Op 00386 [135 AD3d 882] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric P., Appellant. |
Lynn W. L. Fahey, New York, NY (Kendra L. Hutchinson of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and KeithDolan of counsel; Gregory Musso on the brief), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Kings County(Gubbay, J.), both rendered March 28, 2013, convicting him of robbery in the seconddegree and petit larceny under indictment No. 9919/11 (Cyrulnik, J., at plea), and assaultin the second degree under indictment No. 962/13 (Gubbay, J., at plea), upon his pleas ofguilty, and imposing sentences.
Ordered that the judgment rendered under indictment No. 9919/11 is affirmed; and itis further,
Ordered that the judgment rendered under indictment No. 962/13 is modified, on thelaw, by vacating the sentence imposed; as so modified, the judgment rendered underindictment No. 962/13 is affirmed, and the matter is remitted to the Supreme Court,Kings County, for further proceedings consistent herewith.
With regard to the judgment rendered under indictment No. 9919/11, the defendant'svalid waiver of his right to appeal precludes appellate review of his contention that thesentence imposed was excessive (see People v Lopez, 6 NY3d 248, 255 [2006]; People v Knotts, 130 AD3d943 [2015]; People vAragon, 122 AD3d 871 [2014]; People v Witherspoon, 119 AD3d 879 [2014]).
With regard to the judgment rendered under indictment No. 962/13, CriminalProcedure Law § 720.20 (1) requires "that there be a youthful offenderdetermination in every case where the defendant is eligible, even where the defendantfails to request it, or agrees to forgo it as part of a plea bargain" (People v Rudolph, 21 NY3d497, 501 [2013]). As relevant thereto, the Supreme Court stated that the defendantwas not being afforded youthful offender status when it imposed sentence underindictment No. 962/13. 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 independently considered youthful offender treatment instead of denyingsuch treatment because it was not part of the plea agreement (see People v T.E., 131 AD3d1067, 1068 [2015]; Peoplev Stevens, 127 AD3d 791 [2015]; People v Then, 121 AD3d 1025, 1026 [2014]).Accordingly, under these circumstances, we must vacate the sentence imposed underindictment No. 962/13, and remit the matter to the Supreme Court, Kings County, todetermine whether the defendant should be afforded youthful offender [*2]treatment. In light of our determination, the defendant'sremaining contention, that the sentence imposed under indictment No. 962/13 wasexcessive, has been rendered academic. Rivera, J.P., Balkin, Roman and Sgroi, JJ.,concur.