| People v McEachern |
| 2016 NY Slip Op 08248 [145 AD3d 741] |
| December 7, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric McEachern, Appellant. |
Lynn W.L. Fahey, New York, NY, for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County(Firetog, J.), imposed June 10, 2015, upon his conviction of manslaughter in the firstdegree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v McEachern, 126AD3d 1010 [2015]).
Ordered that the resentence is reversed, on the law, and the matter is remitted to theSupreme Court, Kings County, for further proceedings in accordance herewith.
In May 2013, the defendant was convicted, upon his plea of guilty, of manslaughterin the first degree. On a prior appeal by the defendant, this Court determined that theSupreme Court had failed to consider whether the defendant should be treated as ayouthful offender (see People vMcEachern, 126 AD3d 1010 [2015]). Therefore, the judgment was modified byvacating the defendant's sentence, and the matter was remitted to the Supreme Court,Kings County, for resentencing after a determination by that court as to whether thedefendant should be adjudicated a youthful offender (see id.).
At resentencing, however, the Supreme Court failed to place on the record anyreason for not adjudicating the defendant a youthful offender, and the record does notreflect that the court independently considered youthful offender treatment instead ofdenying such treatment because it was not part of the plea agreement (see People v Eric P., 135AD3d 882, 883 [2016]; People v T.E., 131 AD3d 1067, 1068 [2015]; People v Stevens, 127 AD3d791, 792 [2015]; People vThen, 121 AD3d 1025, 1026 [2014]). CPL 720.20 (1) requires "that there be ayouthful offender determination in every case where the defendant is eligible, evenwhere the defendant fails to request it, or agrees to forego it as part of a plea bargain" (People v Rudolph, 21 NY3d497, 501 [2013]; see Peoplev Youmans, 140 AD3d 1097, 1097 [2016]; People v Tyler, 110 AD3d 745, 746 [2013]). "Compliancewith CPL 720.20 (1) requires the sentencing court to actually consider and make anindependent determination of whether an eligible youth is entitled to youthful offendertreatment" (People v Stevens, 127 AD3d at 791-792; see People v Newman, 137AD3d 1306, 1307 [2016]).
Accordingly, the defendant's resentence must be reversed and the matter remitted to[*2]the Supreme Court, Kings County, for resentencingafter a determination as to whether the defendant should be adjudicated a youthfuloffender. Factors to be considered in determining whether to grant or deny youthfuloffender status include, inter alia, the gravity and circumstances of the offense, thedefendant's criminal history, recommendations in the presentence report, the defendant'slevel of cooperation with the authorities, and his or her prospects for rehabilitation (see People v McPhee, 116AD3d 714, 715 [2014]; People v Cruickshank, 105 AD2d 325, 334 [1985],affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]). "Thedetermination of whether to grant or deny youthful offender status rests within the sounddiscretion of the court and depends upon all the attending facts and circumstances of thecase" (People v Ortega, 114 AD2d 912, 912 [1985]; see People v Hesterbey, 121AD3d 1127, 1128 [2014]; People v Mullings, 83 AD3d 871, 872 [2011]). We expressno opinion as to whether the court should afford youthful offender status to thedefendant.
In light of our determination, the defendant's remaining contentions have beenrendered academic. Rivera, J.P., Austin, Roman and Connolly, JJ., concur.