Opinion
Motion No. KA 09-00318 Indictment No. 2007-0988
10-03-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DESHEQUAN L. NATHAN, DEFENDANT-APPELLANT.
Unpublished Opinion
MOTION DECISION
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY AND NEMOYER JJ.
MEMORANDUM
Appellant having moved for a writ of error coram nobis vacating the order of this Court entered July 5, 2013, affirming a judgment of the Supreme Court, Monroe County, entered September 18, 2008, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is hereby ORDERED that the motion is granted.
Memorandum: Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel's representation was not constitutionally adequate. "As held by the Court of Appeals in People v Rudolph (21 N.Y.3d 497, 501 [2013]), CPL 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 Downing, 200 A.D.3d 704, 705 [2d Dept 2021], lv denied 38 N.Y.3d 949 [2022]). Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]), was presumably eligible (see generally People v Gibson, 122 A.D.3d 1331, 1331-1332 [4th Dept 2014]). Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant's judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant's youthful offender status (see Downing, 200 A.D.3d at 705; People v Slide, 197 A.D.3d 1184, 1185 [2d Dept 2021]; see generally People v Borrell, 12 N.Y.3d 365, 368-369 [2009]). The order of July 5, 2013, is vacated and this Court will consider the appeal de novo (see People v Miller, 169 A.D.3d 1460 [4th Dept 2019]). Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023.