HALL, BRANDON S., PEOPLE v ( 2014 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    657
    KA 09-00861
    PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    BRANDON S. HALL, DEFENDANT-APPELLANT.
    CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
    J.), rendered April 22, 2009. The judgment convicted defendant, upon
    his plea of guilty, of burglary in the first degree.
    It is hereby ORDERED that the case is held, the decision is
    reserved and the matter is remitted to Monroe County Court for further
    proceedings in accordance with the following Memorandum: Defendant
    appeals from a judgment convicting him, upon his guilty plea, of
    burglary in the first degree (Penal Law § 140.30 [2]). By failing to
    move to withdraw his plea of guilty or to vacate the judgment of
    conviction, defendant failed to preserve for our review his challenge
    to the factual sufficiency of the plea allocution (see People v Lopez,
    71 NY2d 662, 665; People v Hawkins, 94 AD3d 1439, 1440, lv denied 19
    NY3d 974). Contrary to defendant’s contention, this case does not
    fall within the narrow exception to the preservation requirement
    because nothing in the plea allocution “clearly casts significant
    doubt upon the defendant’s guilt or otherwise calls into question the
    voluntariness of the plea” (Lopez, 71 NY2d at 666; see People v
    Moorer, 63 AD3d 1590, 1590-1591, lv denied 13 NY3d 837).
    As defendant further contends and the People correctly concede,
    however, the court erred in failing to determine whether defendant
    should be afforded youthful offender status. Defendant, an eligible
    youth, pleaded guilty pursuant to a plea bargain that included a
    promised sentence. There was no mention during the plea proceedings
    whether defendant would be adjudicated a youthful offender. “Upon
    conviction of an eligible youth, the court must order a [presentence]
    investigation of the defendant. After receipt of a written report of
    the investigation and at the time of pronouncing sentence the court
    must determine whether or not the eligible youth is a youthful
    offender” (CPL 720.20 [1]). The sentencing court must make “a
    youthful offender determination in every case where the defendant is
    -2-                           657
    KA 09-00861
    eligible, even where the defendant fails to request it, or agrees to
    forgo it as part of a plea bargain” (People v Rudolph, 21 NY3d 497,
    501; see People v Scott, 115 AD3d 1342, 1343; People v Smith, 112 AD3d
    1334, 1334). We therefore hold the case, reserve decision on any
    issues not addressed herein, and remit the matter to County Court to
    make and state for the record “a determination of whether defendant is
    a youthful offender” (Rudolph, 21 NY3d at 503).
    Entered:   July 3, 2014                        Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 09-00861

Filed Date: 7/3/2014

Precedential Status: Precedential

Modified Date: 10/7/2016