Opinion
March 1, 1978
Appeal from the Monroe County Court.
Present — Marsh, P.J., Dillon, Hancock, Jr., Denman and Witmer, JJ.
Judgment insofar as it imposes sentence unanimously reversed and defendant remanded to Monroe County Court for resentencing. Memorandum: At the time of sentencing, after her conviction based on a plea of guilty to the criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), defendant challenged the constitutionality of CPL 720.10 (subd 2, par [a]) which precluded otherwise eligible youths from consideration for youthful offender treatment if the crime with which they were charged was a class A felony. Defendant's constitutional objection was rejected; youthful offender status was denied; and the court sentenced the defendant to the mandatory indeterminate term of imprisonment having a minimum period of one year and a maximum of life. Commendably, the District Attorney has conceded that under People v Drummond ( 40 N.Y.2d 990), the court was in error. Accordingly, the sentence must be reversed, and defendant remanded for consideration of youthful offender status.