| People v Martz |
| 2018 NY Slip Op 01222 [158 AD3d 991] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v John K.Martz, Appellant. |
Edward S. Graves, Indian Lake, for appellant.
Marsha K. Purdue, District Attorney, Indian Lake, for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Hamilton County (Feldstein, J.),rendered June 9, 2016, convicting defendant upon his plea of guilty of the crimes of criminalsexual act in the first degree and sexual abuse in the first degree.
In March 2016, defendant pleaded guilty to the crimes of criminal sexual act in the firstdegree and sexual abuse in the first degree and waived his right to appeal. Defendant committedthe crime of criminal sexual act in the first degree at the age of 15 and committed the crime ofsexual abuse in the first degree at the age of 17. Thereafter, at sentencing, defense counselrequested that County Court grant defendant youthful offender status. County Court stated that itdid not know whether defendant was eligible for youthful offender status, but that, "assuming forthe sake of discussion," defendant was eligible, it would "deny the application." The court'sstated reasoning for the hypothetical denial noted the need for deterrence and the concern that thecrimes at issue "may reflect a proclivity." Defendant was sentenced to an aggregate prison termof eight years to be followed by 20 years of postrelease supervision. Defendant appeals.
We agree with defendant that County Court's comments regarding defendant's application foryouthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiverdoes not foreclose a defendant's challenge that a court failed to make the requisite on-the-recorddeterminations regarding youthful offender treatment (see People v Rudolph, 21 NY3d 497, 501 [2013]; People v Daniels, 139 AD3d 1256,1258 [2016], lv denied 28 NY3d 1183 [2017]). Pursuant to CPL 720.10 (3), "a youth whohas been convicted of . . . criminal sexual act in the first degree . . . isan eligible youth if the court determines that one or more of [*2]the following factors exist: (i) mitigating circumstances that beardirectly upon the manner in which the crime was committed; or (ii) where the defendant was notthe sole participant in the crime, the defendant's participation was relatively minor although notso minor as to constitute a defense to the prosecution." Where, as here, the only barrier toyouthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), "the courtis required to determine on the record whether the defendant is an eligible youth by consideringthe presence or absence of the factors set forth in CPL 720.10 (3)" (People v Middlebrooks, 25 NY3d516, 527 [2015]; see People v Daniels, 139 AD3d at 1257; People v Fields, 133 AD3d 529,530 [2015], lv denied 26 NY3d 1145 [2016]). This determination is mandatory, withoutregard to whether it has been requested or purportedly waived (see People vMiddlebrooks, 25 NY3d at 527).
Initially, County Court's admission that it did not know whether defendant was an eligibleyouth establishes that it was unaware that CPL 720.10 (3) was the governing provision. Therewas thus no determination on the record as to whether there was a presence or absence ofmitigating circumstances that bore directly on the manner in which the crimes were committed(see CPL 720.10 [3]), nor do we find it appropriate in this matter for this Court to rendersuch determination upon review (compare People v Marquis A., 145 AD3d 61, 68 [2016]).Accordingly, as the court erred in failing to make a determination on the record as to theapplication of CPL 720.10 (3) (see People v Middlebrooks, 25 NY3d at 527), we mustvacate defendant's sentence and remit the matter to County Court (see People v Daniels,139 AD3d at 1258; People v T.E.,131 AD3d 1067, 1068 [2015]).
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of HamiltonCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.