Opinion
02-01-2017
The PEOPLE, etc., respondent, v. Louis MILLER, appellant.
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Robert Ho on the memorandum), for respondent.
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Foley, J.), imposed May 28, 2013, upon his plea of guilty, on the ground that the sentence is excessive.
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.
Criminal Procedure Law § 720.20(1) requires "that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain" (People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; see People v. Youmans, 140 A.D.3d 1097, 1097, 33 N.Y.S.3d 744 ). Here, as the People correctly concede, the record does not demonstrate that the Supreme Court considered whether the defendant should be afforded youthful offender status. Under these circumstances, the defendant's sentence must be reversed and the matter remitted to the Supreme Court, Kings County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment (see People v. Spitzer, 130 A.D.3d 657, 658, 10 N.Y.S.3d 902 ; People v. Ramirez, 115 A.D.3d 992, 993, 983 N.Y.S.2d 57 ; see also People v. Youmans, 140 A.D.3d at 1097, 33 N.Y.S.3d 744; People v. Mead, 134 A.D.3d 960, 961, 22 N.Y.S.3d 492 ; People v. Calkins, 119 A.D.3d 975, 976, 989 N.Y.S.2d 183 ). We express no opinion as to whether the Supreme Court should afford youthful offender treatment to the defendant.
ENG, P.J., AUSTIN, ROMAN, MALTESE and DUFFY, JJ., concur.