People v. D.A.
| Decision Date | 03 June 2020 |
| Docket Number | 2017-02548,2017-02546,Ind. Nos. 2721/16, 9985/16 |
| Citation | 124 N.Y.S.3d 374,184 A.D.3d 581 |
| Parties | The PEOPLE, etc., respondent, v. D.A. (Anonymous), appellant. |
| Court | New York Supreme Court — Appellate Division |
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 ON MOTION
Appeals by the defendant from two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both rendered February 8, 2017, convicting him of criminal possession of a firearm under Indictment No. 2721/16, and attempted criminal possession of a weapon in the second degree under Indictment No. 9985/16, upon his pleas of guilty, and imposing sentences.
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 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 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 sentencing court for resentencing after determining whether the defendant should be treated as a youthful offender" ( People v. Thomas, 157 A.D.3d 723, 724–725, 69 N.Y.S.3d 361 ). Contrary to the People's contention, holding the appeal in abeyance pending a youthful offender determination is not appropriate in this case, as the defendant has not yet completed his sentence and there is no issue on appeal that we do not decide herein (see id. at 725, 69 N.Y.S.3d 361 ).
The defendant contends that the Supreme Court lacked the authority to issue an order of protection at the time of sentencing, as the individual named in the order of protection was not a victim, victim's relative or household member, or witness as defined by CPL 530.13(4). However, the defendant failed to preserve this argument for appellate review (see CPL 470.05[2] ; People v. May, 138 A.D.3d 1146, 1147, 30 N.Y.S.3d 327 ), and we decline to review it in the exercise of our interest of justice jurisdiction since the defendant agreed to the issuance of an order of protection as part of his plea agreement (see People v. Smith, 83 A.D.3d 1213, 1214, 920 N.Y.S.2d 736 ).
"A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Daniels, 160 A.D.3d 979, 980, 72 N.Y.S.3d 470 ; People v. Pressley, 116 A.D.3d 794, 795–796, 983 N.Y.S.2d 322 ). An appeal waiver is made knowingly, intelligently, and voluntarily where "a defendant has a full appreciation of the consequences of such waiver" ( People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 [internal quotation marks omitted] ).
Here, the People correctly concede that the record does not demonstrate that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). In light of the defendant's age, ninth grade education, and lack of experience with the criminal justice system, the Supreme Court's cursory colloquy regarding the appeal waiver was insufficient (see e.g. People v. Fuller, 163 A.D.3d 715, 715, 76 N.Y.S.3d 852 ). The court twice improperly suggested that the appeal waiver was mandatory, failed to explain the defendant's right to appeal...
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