People v. Marcel G.

• Decision Date: 06 May 2020
• Docket Number: 2017–0849,Ind. No. 9474/15
• Citation: 123 N.Y.S.3d 162,183 A.D.3d 667
• Parties: The PEOPLE, etc., respondent, v. MARCEL G. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 667

123 N.Y.S.3d 162

The PEOPLE, etc., respondent,

v.MARCEL G. (Anonymous), appellant.

2017–0849

Ind. No. 9474/15

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

Argued—April 8, 2019

May 6, 2020

Paul Skip Laisure, New York, N.Y. (Sean Nuttall of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel; Robert Ho on the brief), for respondent.

JOHN M. LEVENTHAL, J.P., HECTOR D. LASALLE, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by defendant from a judgment of the Supreme Court, Kings County (Cassandra Mullen, J.), rendered June 29, 2017, convicting him of attempted robbery in the second degree and petit larceny, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, the convictions are deemed vacated and replaced with a finding that the defendant is a youthful offender (see CPL 720.20[3] ), the sentence is vacated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence pursuant to Penal Law § 60.02 and for further proceedings in accordance with CPL 720.35.

Contrary to the People's contention, under the particular circumstances of this case, the defendant's purported waiver of his right to appeal was invalid. A waiver "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. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). "An appellate waiver meets this standard when a defendant has a full appreciation of the consequences of such waiver" ( People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [internal quotation marks omitted]; see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Brown, 122 A.D.3d at 136, 992 N.Y.S.2d 297 ). "[F]actors individual to each defendant, such as the defendant's ‘age, experience and background,’ may be relevant in assessing the validity of a particular appeal waiver" ( People v. Brown, 122 A.D.3d at 138, 992 N.Y.S.2d 297, quoting People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).

Here, the defendant's age and lack of experience with the criminal justice system "warranted a more thorough explanation, as the [conviction of attempted robbery in the second degree] was the first felony conviction for the defendant," whose education was limited to some high school ( People v. Brown , 122 A.D.3d at 146, 992 N.Y.S.2d 297 ). We find that the colloquy in which the Supreme Court engaged with the defendant was insufficient to produce a voluntary, knowing, and intelligent waiver (see People v. Bradshaw , 18 N.Y.3d at 265–266, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. DeMicheli , 129 A.D.3d 743, 10 N.Y.S.3d 330 ; People v. Brown , 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Moreover, although the record contains a written waiver, there is no indication from the defendant on the record that he actually read the waiver, and that he understood and was aware of its contents (see People v. Conley , 150 A.D.3d 1023, 1024, 55 N.Y.S.3d 320 ). Accordingly, the defendant is entitled to review of his contention that he should have been afforded youthful offender treatment (see People v. Sheldon O. , 169 A.D.3d 1062, 1063, 94 N.Y.S.3d 549 ).

A finding of youthful offender status is permissible when "the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years" ( CPL 720.20[1][a] ). " ‘The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case’ " ( People v. McEachern, 163 A.D.3d 850, 851, 81 N.Y.S.3d 571, quoting People v. Hesterbey, 121 A.D.3d 1127, 1128, 994 N.Y.S.2d 421 ). In making such a determination, factors to be considered by the court include "the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life" ( People v. Cruickshank, 105 A.D.2d 325, 334, 484 N.Y.S.2d 328, affd sub...