| People v Thomas |
| 2018 NY Slip Op 00175 [157 AD3d 723] |
| January 10, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Thomas, Appellant. |
Paul Skip Laisure, New York, NY (Meredith S. Holt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel ofcounsel; Felix O. De Jesus on the brief), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Kings County (Chun,J.), both rendered May 4, 2016, convicting him of sex trafficking under indictment No. 4142/13,and attempted criminal possession of a weapon in the second degree under indictment No.6821/15, upon his pleas of guilty, and imposing sentences.
Ordered that the judgment rendered under indictment No. 4142/13 is modified, on the law,by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and itis further,
Ordered that the judgment rendered under indictment No. 6821/15 is affirmed.
The defendant pleaded guilty under Kings County indictment No. 4142/13 to sex trafficking(Penal Law § 230.34 [2]) for acts he committed when he was 17 to 18 years old. Healso pleaded guilty under Kings County indictment No. 6821/15 to attempted criminal possessionof a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]) for actshe committed when he was 22 years old. The Supreme Court sentenced him under bothindictments on May 4, 2016. The defendant appeals from both judgments of conviction,contending that the court erred in failing to consider whether he should be treated as a youthfuloffender for his sex trafficking conviction (see People v Rudolph, 21 NY3d 497 [2013]), and that the sentenceimposed on his conviction of attempted criminal possession of a weapon in the second degreewas excessive (see CPL 470.15 [6] [b]).
CPL 720.20 (1) provides, in relevant part, that upon the conviction of an eligible youth, "atthe time of pronouncing sentence the court must determine whether or not the eligible youth is ayouthful offender." Compliance with this statutory mandate requires that the sentencing courtactually consider and make a determination of whether an eligible youth is entitled to youthfuloffender treatment, "even where [the] 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" (People vRudolph, 21 NY3d at 499; seePeople v T.E., 131 AD3d 1067, 1068 [2015]; People v Dawkins, 131 AD3d 482, 483 [2015]; People v Stevens, 127 AD3d 791,792 [2015]). The People correctly concede that the defendant was an eligible youth with respectto the sex trafficking conviction, and the record here does not demonstrate that, at the time of thesentencing, the Supreme Court considered whether the defendant should be afforded youthfuloffender treatment as required by CPL 720.20 (see People v Rudolph, 21 NY3d at 503;People v Henry, 143 AD3d1001 [2016]; People v T.E., 131 AD3d at 1068; People v Stevens, 127 AD3d[*2]at 792). Where, as here, the sentencing court failed to complywith CPL 720.20, this Court must vacate the sentence and remit the matter to the sentencingcourt for resentencing after determining whether the defendant should be treated as a youthfuloffender (see People v Henry, 143AD3d 1001 [2016]; People vYoumans, 140 AD3d 1097 [2016]; People v Eric P., 135 AD3d 882, 883 [2016]; People v Worrell, 134 AD3d 1137,1138 [2015]; People v Ayende, 133AD3d 771 [2015]; cf. CPL 470.15 [2] [c]; [4] [c]). The People's reliance on People v Brooks (120 AD3d 1255[2014]) and People v Newman (137AD3d 1306 [2016]) for the proposition that the sentence need not be vacated is misplacedinasmuch as, in each of those cases, the sentence had been served by the time of the appeal andthus was not subject to vacatur. We also reject the People's contention that this appeal should beheld in abeyance pending the court's determination of whether the defendant should be treated asa youthful offender. The defendant has raised no issue on appeal that is not fully decided herein,and thus there is nothing upon which to reserve decision.
Contrary to the People's contention, under the circumstances of this case, the defendant'spurported waiver of the right to appeal does not preclude appellate review of his claim that thesentence imposed under indictment No. 6821/15 was excessive. The plea colloquy fails toestablish that the defendant knowingly, voluntarily, and intelligently waived his right to appealthe severity of his sentence (see People vMaracle, 19 NY3d 925, 927-928 [2012]; People v Mitchell, 153 AD3d 939 [2017]; see also People v Sanders, 25 NY3d337, 340 [2015]; People vBradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]). However, the sentenceimposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
Accordingly, the defendant's sentence under indictment No. 4142/13 must be vacated and thematter remitted to the Supreme Court, Kings County, for a determination of whether thedefendant should be afforded youthful offender treatment, and thereupon, resentencing. Balkin,J.P., Austin, Sgroi and Brathwaite Nelson, JJ., concur.