Opinion
08-05-2015
The PEOPLE, etc., respondent, v. Michael DAWKINS, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
Opinion Appeal by the defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County (Donnelly, J.), imposed November 8, 2013, upon his conviction of attempted murder in the second degree, upon his plea of guilty.
ORDERED that the sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
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. Stevens, 127 A.D.3d 791, 4 N.Y.S.3d 546 ; People v. Ojomo, 126 A.D.3d 1011, 3 N.Y.S.3d 621 ; People v. Evans, 126 A.D.3d 721, 5 N.Y.S.3d 467 ; People v. Calkins, 119 A.D.3d 975, 976, 989 N.Y.S.2d 183 ; see also People v. Then, 121 A.D.3d 1025, 1026, 994 N.Y.S.2d 420 ; People v. Pacheco, 110 A.D.3d 927, 973 N.Y.S.2d 704 ).
Here, the record does not demonstrate that the Supreme Court considered whether to adjudicate the defendant a youthful offender. Therefore, we vacate the defendant's sentence, and remit the matter to the Supreme Court, Kings County, for resentencing after a determination of whether the defendant should be afforded youthful offender treatment (see People v. Ramirez, 115 A.D.3d 992, 983 N.Y.S.2d 57 ). We express no opinion as to whether the Supreme Court should afford youthful offender treatment to the defendant.
RIVERA, J.P., DICKERSON, HINDS–RADIX and BARROS, JJ., concur.