Opinion
2014–06843, 2014–06844 Ind. No. 10635/12
08-19-2020
The PEOPLE, etc., respondent, v. Roman KOSTYK, appellant.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Daniel Berman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Daniel Berman of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Kings County (Matthew J. D'Emic, J.), both rendered August 8, 2013, convicting him of burglary in the second degree and criminal trespass in the second degree under Indictment No. 07935/2012 and burglary in the second degree and criminal trespass in the second degree under Indictment No. 10635/2012, upon his pleas of guilty, and imposing sentences. By decision and order dated March 20, 2019, this Court remitted the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty, and thereafter for the submission of a report by the Supreme Court on any such motion, and the appeals were held in abeyance in the interim (see People v. Kostyk, 170 A.D.3d 1042, 94 N.Y.S.3d 452 ). The Supreme Court has filed its report.
ORDERED that the judgments are modified, on the law, by vacating the sentences imposed; as so modified, the judgments are affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
In a decision and order dated March 20, 2019, this Court remitted the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty based on the failure of the Supreme Court to advise the defendant of the possibility of deportation as a consequence of his pleas (see People v. Kostyk, 170 A.D.3d 1042, 94 N.Y.S.3d 452 ).
Upon remittitur, the defendant moved to vacate his pleas of guilty. A hearing on the motion was scheduled. However, prior to the hearing being held, the defendant's counsel informed the Supreme Court of the defendant's intention to withdraw the motion. In a report to this Court dated February 24, 2020, the Supreme Court noted that the defendant's motion had been withdrawn, and that there was no further action to be taken.
Since the defendant has withdrawn his motion to vacate his pleas of guilty, there is no basis to vacate the pleas and to reverse the judgments of conviction based on the Supreme Court's failure to advise the defendant of the possibility of deportation as a consequence of his pleas.
CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, "at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender" (see People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; People v. Hall, 160 A.D.3d 896, 896, 73 N.Y.S.3d 898 ; People v. Thomas, 157 A.D.3d 723, 724, 69 N.Y.S.3d 361 ). Here, as the People concede, even though the defendant was an eligible youth, the record does not demonstrate that at the time of sentencing, the Supreme Court considered and determined whether the defendant should be treated as a youthful offender (see People v. Hall, 160 A.D.3d at 897, 73 N.Y.S.3d 898 ; People v. Thomas, 157 A.D.3d at 724–725, 69 N.Y.S.3d 361 ; People v. Watson, 154 A.D.3d 976, 976, 61 N.Y.S.3d 918 ). Accordingly, we must vacate the sentences imposed and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment, and thereupon, resentencing (see People v. Hall, 160 A.D.3d at 897, 73 N.Y.S.3d 898 ; People v. Thomas, 157 A.D.3d at 724–725, 69 N.Y.S.3d 361 ; People v. Watson, 154 A.D.3d at 976, 61 N.Y.S.3d 918 ).
DILLON, J.P., LEVENTHAL, CONNOLLY and CHRISTOPHER, JJ., concur.