| People v Colon |
| 2019 NY Slip Op 04498 [173 AD3d 1255] |
| June 6, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jerre Colon, Appellant. |
David E. Woodin, Catskill, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 27,2016 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the first degree.
Defendant was indicted and charged with robbery in the first degree and robbery in thesecond degree. The charges stemmed from an incident that occurred in late December 2015wherein defendant, then 17 years old, while acting in concert with another and displaying whatappeared to be a shotgun, forcibly stole property from a taxicab driver. Defendant agreed to pleadguilty to the reduced charge of attempted robbery in the first degree with the understanding thathe would be sentenced to no more than 10 years in prison followed by five years of postreleasesupervision. The plea agreement also required defendant to waive his right to appeal.
During the plea colloquy, Supreme Court indicated that it was not inclined to accorddefendant youthful offender treatment but acknowledged that it would be required to review thisissue at sentencing. Defendant thereafter pleaded guilty to the reduced charge of attemptedrobbery in the first degree. At sentencing, after stating that youthful offender treatment was"absolutely inappropriate," Supreme Court sentenced defendant to 10 years in prison followed byfive years of postrelease supervision. This appeal ensued.
Although Supreme Court ultimately denied defendant youthful offender treatment under CPL720.20, defendant argues that the court did not—in the first instance—determinewhether he was an eligible youth consistent with the procedures set forth in CPL 720.10.Defendant was "entitled to an express determination of whether, notwithstanding his convictionof an armed felony, he [was] still eligible for youthful offender treatment based on the factors setforth in CPL 720.10 (3)" (People vFields, 133 AD3d 529, 530 [2015], lv denied 26 NY3d 1145 [2016]; see People v Middlebrooks, 25 NY3d516, 525, 527 [2015]). Because the record does not establish that Supreme Court made suchan express determination, we must vacate defendant's sentence.
As pertinent here, a "youth" is "a person charged with a crime alleged to have beencommitted when he [or she] was at least [16] years old and less than [19] years old" (CPL 720.10[1]), and an "eligible youth" is "a youth who is eligible to be found a youthful offender" (CPL720.10 [2]). "Every youth is so eligible unless," insofar as is relevant here, the conviction at issueis for "an armed felony as defined in [CPL 1.20 (41)]" (CPL 720.10 [2] [a] [ii]).[FN*] Even then, however, a convictionfor an armed felony does not automatically preclude a finding that a particular offender is aneligible youth (see CPL 720.10 [2] [a]; [3]). Rather, CPL 720.10 (3) provides, in relevantpart, that "[n]otwithstanding the provisions of [CPL 720.10 (2)], a youth who has been convictedof an armed felony offense . . . is an eligible youth if the court determines that oneor more of the following factors exist: (i) mitigating circumstances that bear directly upon themanner in which the crime was committed; or (ii) where the defendant was not the soleparticipant in the crime, the defendant's participation was relatively minor although not so minoras to constitute a defense to the prosecution."
In interpreting the sentencing court's obligations under CPL 720.10, the Court of Appeals hasheld that, "when a defendant has been convicted of an armed felony . . . , and theonly barrier to his or her youthful offender eligibility is that conviction, the court is required todetermine on the record whether the defendant is an eligible youth by considering the presence orabsence of the factors set forth in CPL 720.10 (3). The court must make such a determination onthe record 'even where the defendant has failed to ask to be treated as a youthful offender, or haspurported to waive his or her right to make such a request' pursuant to a plea bargain" (Peoplev Middlebrooks, 25 NY3d at 527 [brackets omitted], quoting People v Rudolph, 21 NY3d 497,499 [2013]; see People v Martz, 158AD3d 991, 992 [2018]; People vMarquis A., 145 AD3d 61, 67-68 [2016]; People v Jahquel L., 112 AD3d 1155, 1156 n [2013]). If the courtdetermines that the offender is not an eligible youth, the inquiry is at an end; however, "if thecourt determines that the defendant is an eligible youth based on the presence of one or more ofthe CPL 720.10 (3) factors, . . . [t]he court [then] must exercise its discretion asecond time to determine whether the eligible youth should be granted youthful offendertreatment pursuant to CPL 720.20 (1)" (People v Middlebrooks, 25 NY3d at 527).
The record before us does not conclusively establish that Supreme Court reached adetermination, as required by CPL 720.10, regarding defendant's eligibility for youthful offendertreatment in the first instance. The court made no mention of the factors set forth in CPL 720.10(3) and, instead of first determining defendant's eligibility for youthful offender treatmentpursuant to that statute, appears to have moved to the second step and determined that youthfuloffender treatment was inappropriate under CPL 720.20. In this regard, it is impossible to discernfrom the record whether such finding was intended as an expression of defendant's ineligibilityunder CPL 720.10 (3) or, rather, was based upon a determination that, although defendant was aneligible youth, the underlying circumstances did not warrant granting defendant youthful offendertreatment pursuant to CPL 720.20 (see generally People v Marquis A., 145 AD3d at 69[factors to be considered in determining whether to accord youthful offender treatment];People v Cruickshank, 105 AD2d 325, 334 [1985], affd sub nom. People v DawnMaria C., 67 NY2d 625 [1986] [same]). Contrary to the People's assertion, Supreme Court'sstatutory obligation under CPL 720.10 (3) was not obviated by defense counsel's failure toexpressly argue the existence of certain mitigating factors (see e.g. People vMiddlebrooks, 25 NY3d at 527). As the record does not contain enough information for thisCourt to reach a determination on the CPL 720.10 (3) factors (compare People v MarquisA., 145 AD3d at 69-70), defendant's sentence is vacated, and this matter is remitted for adetermination as to whether defendant is an eligible youth within the meaning of CPL 720.10(see People v Middlebrooks, 25 NY3d at 527-528; People v Martz, 158 AD3d at992-993; People v Daniels, 139AD3d 1256, 1257-1258 [2016], lv denied 28 NY3d 1183 [2017]). In light of thisconclusion, we need not address defendant's challenge to the validity of his waiver of the right toappeal (see People v Pacherille, 25NY3d 1021, 1023 [2015]; People v Martz, 158 AD3d at 992; People vDaniels, 139 AD3d at 1258), and his alternative argument is academic.
Garry, P.J., Egan Jr., Clark and Pritzker, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *:Attempted robbery in the firstdegree (see Penal Law §§ 110.00, 160.15 [4]) is an armed felonywithin the meaning of CPL 1.20 (41) (b) (see Penal Law § 70.02 [1] [a], [b];People v Stokes, 28 AD3d 592,592 [2006]).