Opinion
2021-05434
10-08-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LAWRENCE CANNON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, JJ.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered October 31, 2016. 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 Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30 [3]). We conclude that Supreme Court properly refused to suppress defendant's statement to the police inasmuch as the record establishes that he knowingly and intelligently waived his Miranda rights and, contrary to his contention, there is no indication that the police unlawfully isolated him from supportive adults who attempted to see him (see People v Salaam, 83 N.Y.2d 51, 55 [1993]; People v Tompkins, 66 A.D.3d 1373, 1373 [4th Dept 2009], lv denied 15 N.Y.3d 758 [2010]).
However, we agree with defendant that the court erred in failing to determine whether he should be afforded youthful offender status (see People v Rudolph, 21 N.Y.3d 497, 501 [2013]; People v Lester, 155 A.D.3d 1579, 1579 [4th Dept 2017], lv denied 32 N.Y.3d 1206 [2019]). Defendant is an eligible youth and, as the People correctly concede, the sentencing court must make "a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it" (Rudolph, 21 N.Y.3d at 501; see People v Willis, 161 A.D.3d 1584, 1584 [4th Dept 2018]). We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record a determination whether defendant should be afforded youthful offender status (see People v Polanco, 186 A.D.3d 1109, 1110 [4th Dept 2020]).