People v. Stevens

• Decision Date: 01 April 2015
• Parties: The PEOPLE, etc., respondent, v. Elijah STEVENS, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 791

4 N.Y.S.3d 546 (Mem)

2015 N.Y. Slip Op. 02794

The PEOPLE, etc., respondent

v.Elijah STEVENS, appellant.

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

April 1, 2015.

Seymour W. James, Jr., New York, N.Y. (Heidi Bota of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Robert Ho on the brief), for respondent.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gubbay, J.), rendered September 11, 2012, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment 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.

The defendant's general waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ). In any event, the defendant's contention that the Supreme Court failed to consider whether to afford him youthful offender treatment is not barred by a general waiver of the right to appeal (see People v. Brooks, 120 A.D.3d 1255, 1256, 991 N.Y.S.2d 899 ; People v. Malcolm, 118 A.D.3d 447, 987 N.Y.S.2d 607 ; People v. Ramirez, 115 A.D.3d 992, 993, 983 N.Y.S.2d 57 ; People v. Pacheco, 110 A.D.3d 927, 973 N.Y.S.2d 704 ; People v. Tyler, 110 A.D.3d 745, 746, 972 N.Y.S.2d 632 ).

In People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457, the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where 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.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment (see People v. Evans, 126 A.D.3d 721, 5 N.Y.S.3d 467, 2015 N.Y. Slip Op. 01814 [2d Dept.2015] ; People v. Calkins, 119 A.D.3d 975, 989 N.Y.S.2d 183 ; People v. Malcolm, 118 A.D.3d at 447, 987 N.Y.S.2d 607 ; People v. Tyler, 110 A.D.3d at 746, 972 N.Y.S.2d 632 ; see also People v. Then, 121 A.D.3d 1025, 1026, 994 N.Y.S.2d 420 ; People v. Pacheco, 110 A.D.3d at 927, 973 N.Y.S.2d 704 ).

Here, the Supreme Court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Under these circumstances, we vacate the defendant's sentence, and remit the matter to the Supreme Court, Kings County, for a...