People v. Anderson

• Citation: 95 N.Y.S.3d 274,170 A.D.3d 739
• Decision Date: 06 March 2019
• Docket Number: 2017–02548,Ind.Nos. 2721/16, 9985/16,2017–02546
• Parties: The PEOPLE, etc., Respondent, v. Daniel ANDERSON, Appellant.
• Court: New York Supreme Court Appellate Division

170 A.D.3d 739
95 N.Y.S.3d 274

The PEOPLE, etc., Respondent,
v.
Daniel ANDERSON, Appellant.

2017–02546
2017–02548
Ind.Nos. 2721/16, 9985/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 26, 2018
March 6, 2019

Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Ruby D. Andrade on the brief), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

170 A.D.3d 739

ORDERED that the judgment rendered under Indictment No. 2721/16 is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and it is further,

ORDERED that the judgment rendered under Indictment No. 9985/16 is affirmed.

The defendant pleaded guilty under Kings County Indictment No. 2721/16 to criminal possession of a firearm for acts he committed when he was 18 years old. The defendant pleaded guilty under Kings County Indictment No. 9985/16 to attempted criminal possession of a weapon in the second degree for acts he committed when he was 19 years old. The Supreme

170 A.D.3d 740

Court sentenced the defendant under both indictments on February 8, 2017. The defendant appeals from both judgments.

" CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, ‘at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender’ " ( People v. Hall , 160 A.D.3d 896, 896, 73 N.Y.S.3d 898, quoting CPL 720.20[1] ). "Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, ‘even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ " ( People v. Hall , 160 A.D.3d at 896–897, 73 N.Y.S.3d 898, quoting

95 N.Y.S.3d 276

People v. Rudolph , 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Here, as the People correctly concede, the defendant "was a youth eligible to be found a youthful offender" with respect to his conviction of criminal possession of a firearm, "and the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status" ( People v. Hall , 160 A.D.3d at 897, 73 N.Y.S.3d 898 ). "Where, as here, the sentencing court failed to comply with CPL 720.20, this Court must vacate the sentence and remit the matter to the...