Opinion
937 KA 09-00318
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Deshequan L. NATHAN, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ELEANOR BIGGERS OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ELEANOR BIGGERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of manslaughter in the first degree ( Penal Law § 125.20 [1] ). On a prior appeal, we affirmed the judgment ( People v. Nathan , 108 A.D.3d 1077, 969 N.Y.S.2d 332 [4th Dept. 2013] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel's representation was not constitutionally adequate ( People v. Nathan , 208 A.D.3d 1653, 174 N.Y.S.3d 637 [4th Dept. 2022] ). Specifically, we concluded that meaningful representation required that appellate counsel, after the Court of Appeals decided ( People v. Rudolph, 21 N.Y.3d 497, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ) during the pendency of the prior appeal, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph required that the sentence must be vacated and the matter remitted for determination of defendant's youthful offender status ( Nathan , 208 A.D.3d at 1653-1654, 174 N.Y.S.3d 637 ).
Upon reviewing the appeal de novo, we conclude that Supreme Court erred in failing to determine whether defendant should be afforded youthful offender status. Pursuant to CPL 720.20 (1), the sentencing court must make "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" ( Rudolph , 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; see Nathan , 208 A.D.3d at 1653, 174 N.Y.S.3d 637 ; People v. Crimm , 122 A.D.3d 1300, 1300, 995 N.Y.S.2d 427 [4th Dept. 2014] ). "[W]hile eligible youths are not necessarily entitled to be sentenced as a [youthful offender], all eligible youths have the right ‘to have a court decide whether such treatment is justified’ " ( People v. Minemier , 29 N.Y.3d 414, 419, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017], quoting Rudolph , 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Here, contrary to the parties’ incorrect concessions, to which we are not bound (see People v. Berrios , 28 N.Y.2d 361, 366-367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ; People v. Adair , 177 A.D.3d 1357, 1357, 114 N.Y.S.3d 543 [4th Dept. 2019], lv denied 34 N.Y.3d 1125, 118 N.Y.S.3d 503, 141 N.E.3d 459 [2020] ), we note that "manslaughter in the first degree is not an ‘armed felony’ for purposes of CPL 720.10 (2) (a) (ii)" ( People v. Graham , 202 A.D.3d 1482, 1482-1483, 158 N.Y.S.3d 908 [4th Dept. 2022] ). Thus, defendant's "eligibility for youthful offender status d[oes] not turn ... on the existence of a statutory mitigating factor enumerated in CPL 720.10 (3)" ( id. ; see People v. Jarvis , 186 A.D.3d 1086, 1086-1087, 127 N.Y.S.3d 377 [4th Dept. 2020] ). Inasmuch as defendant is otherwise eligible for youthful offender status on this conviction (see CPL 720.10 [1], [2] ), the court was obligated to make a discretionary youthful offender determination before imposing sentence (see id. subd [1]; Rudolph , 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; Graham , 202 A.D.3d at 1483, 158 N.Y.S.3d 908 ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record a determination whether defendant should be afforded youthful offender status (see Graham , 202 A.D.3d at 1483, 158 N.Y.S.3d 908 ).