People v. Colon
| Decision Date | 06 June 2019 |
| Docket Number | 109015 |
| Citation | 102 N.Y.S.3d 753,173 A.D.3d 1255 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jerre COLON, Appellant. |
173 A.D.3d 1255
102 N.Y.S.3d 753
The PEOPLE of the State of New York, Respondent,
v.
Jerre COLON, Appellant.
109015
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: April 23, 2019
Decided and Entered: June 6, 2019
David E. Woodin, Catskill, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
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 attempted robbery in the first degree.
Defendant was indicted and charged with robbery in the first degree and robbery in the second degree. The charges stemmed from an incident that occurred in late December 2015 wherein defendant, then 17 years old, while acting in concert with another and displaying what appeared to be a shotgun, forcibly stole property from a taxicab driver. Defendant agreed to plead guilty to the reduced charge of attempted robbery in the first degree with the understanding that he would be sentenced to no more than 10 years in prison followed by five years of postrelease supervision. 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 accord defendant youthful offender treatment but acknowledged that it would be required to review this issue at sentencing. Defendant thereafter pleaded guilty to the reduced charge of attempted robbery 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 by five years of postrelease supervision. This appeal ensued.
Although Supreme Court ultimately denied defendant youthful offender treatment under CPL 720.20, defendant argues that the court did not – in the first instance – determine whether 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 conviction of an armed felony, he [was] still eligible for youthful offender treatment based on the factors set forth in CPL 720.10(3)" ( People v. Fields, 133 A.D.3d 529, 530, 19 N.Y.S.3d 411 [2015], lv denied 26 N.Y.3d 1145, 32 N.Y.S.3d 59, 51 N.E.3d 570 [2016] ; see People v. Middlebrooks, 25 N.Y.3d 516, 525, 527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ). Because the record does not establish that Supreme Court made such an express determination, we must vacate defendant's sentence.
As pertinent here, a "youth" is "a person charged with a crime alleged to have been committed 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" ( CPL 720.10[2] ). "Every youth is so eligible unless," insofar as is relevant here, the conviction at issue is for "an armed felony as defined in [ CPL 1.20(41) ]" ( CPL 720.10[2][a][ii] ).1 Even then, however, a conviction for an armed felony does not automatically preclude a finding that a particular offender is an eligible youth (see CPL 720.10[2][a] ; [3] ). Rather, CPL 720.10(3) provides, in relevant part, that "[n]otwithstanding the provisions of [ CPL 720.10(2) ], a youth who has been convicted of an armed felony offense ... is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution."
In interpreting the sentencing court's obligations under CPL 720.10, the Court of Appeals has held that, "when a defendant has been convicted of an armed felony ..., and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 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 or her right to make such a request’ pursuant...
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