| People v Dukes |
| 2017 NY Slip Op 01105 [147 AD3d 1534] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Kevin A.Dukes, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered January 13, 2015. The judgment convicted defendant, upon his plea of guilty, ofrobbery in the first degree and criminal sexual act in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Monroe County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, ofrobbery in the first degree (Penal Law § 160.15 [4]) and criminal sexual act in thefirst degree (§ 130.50 [1]). On a prior appeal, we reversed the judgment, vacated theplea, and remitted the matter to Supreme Court on the ground that the court had "erred inaccepting [defendant's] plea without ensuring that he was making an informed decision to waivea potential affirmative defense to the robbery charge" (People v Dukes, 120 AD3d 1597, 1597 [2014]). On remittal,defendant entered the same plea and received the same sentence. Defendant now contends thatthe court erred in failing to make a reasoned determination whether he should be affordedyouthful offender status. We agree.
Where, as here, "a defendant has been convicted of an armed felony or an enumerated sexoffense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the only barrier to his or her youthfuloffender eligibility is that conviction, the court is required to determine on the record whether thedefendant is an eligible youth by considering the presence or absence of the factors set forth inCPL 720.10 (3). The court must make such a determination on the record 'even where [the]defendant has failed to ask to be treated as a youthful offender, or has purported to waive his orher right to make such a request' pursuant to a plea bargain . . . If the courtdetermines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states thereasons for that determination on the record, no further determination by the court isrequired. If, however, the court determines that one or more of the CPL 720.10 (3) factors arepresent, and the defendant is therefore an eligible youth, the court then 'must determine whetheror not the eligible youth is a youthful offender' " (People v Middlebrooks, 25 NY3d 516, 527-528 [2015] [emphasisadded]).
Here, the court did not state on the record its reasons for determining that neither of the CPL720.10 (3) factors exists, as required by Middlebrooks, and it did not otherwise"demonstrat[e] that it implicitly resolved the threshold issue of eligibility in . . .defendant's favor" (People v Stitt,140 AD3d 1783, 1784 [2016], lv denied 28 NY3d 937 [2016]). We therefore holdthe case, reserve decision, and remit the matter to Supreme Court to state for the record itsreasons for determining that neither of the CPL 720.10 (3) factors is present (see People v Quinones, 129 AD3d1699, 1700 [2015]; People vStewart, 129 AD3d 1700, 1701 [2015]). Present—Peradotto, J.P., Carni, Lindley,Curran and Scudder, JJ.