This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 57
The People &c.,
            Respondent,
        v.
Anthony N. Pacherille,
            Appellant.




          Frank Policelli, for appellant.
          John M. Muehl, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          In satisfaction of a four-count indictment, defendant
pleaded guilty to attempted murder in the second degree.   Under
the plea agreement, he was promised a sentence of 11 years in
prison, followed by five years of postrelease supervision.   He
waived his right to appeal.


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           At sentencing, County Court was presented with letters
from the community, defendant's sentencing memoranda and
psychiatric reports, a letter from the victim and the
pre-sentence report concerning defendant's prospects for
rehabilitation.   Upon consideration of all the information before
it, County Court denied defendant's request to be adjudicated a
youthful offender.   While acknowledging defendant's mental
illness, County Court determined that the illness did not
outweigh the "seriousness of the crime he committed [nor] its
impact on the victim and the community."   As a result, the court
concluded that the interests of justice would not be served by
granting defendant youthful offender status (see CPL § 720.20 [1]
[a]).   Defendant was then sentenced in accordance with the plea
agreement.   The Appellate Division affirmed (106 AD3d 1136
[2013]).
           As we have repeatedly observed, a plea of guilty
generally "marks the end of a criminal case, not a gateway to
further litigation" (People v Taylor, 65 NY2d 1, 5 [1985]).    The
plea bargaining process includes "the surrender of many
guaranteed rights" (People v Seaberg, 74 NY2d 1, 7 [1989]), such
as the right to a trial by jury and to confrontation (see People
v Hansen, 95 NY2d 227, 230 [2000]).
           A defendant may also waive the right to appeal as a
condition of a plea bargain (see Seaberg, 74 NY2d at 5).
"[G]enerally, an appeal waiver will encompass any issue that does


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not involve a right of constitutional dimension going to 'the
very heart of the process'" (People v Lopez, 6 NY3d 248, 255
[2006], quoting Hansen, 95 NY2d at 230).   This Court has
recognized that the right to a speedy trial, challenges to the
legality of a court-imposed sentence, questions about a
defendant's competency to stand trial, and whether the waiver was
obtained in a constitutionally acceptable manner cannot be
foreclosed from appellate review (see People v Callahan, 80 NY2d
273, 280 [1992]).
          In People v Rudolph (21 NY3d 497, 499 [2013]), we held
that under CPL 720.20 (1) "where a defendant is eligible to be
treated as a youthful offender, the sentencing court 'must'
determine whether he or she is to be so treated."   We further
held that "compliance with this statutory command cannot be
dispensed with, even where [a] defendant has failed to ask to be
treated as a youthful offender, or has purported to waive his or
her right to make such a request" (id.).   Thus, we created a
narrow exception that when a sentencing court has entirely
abrogated its responsibility to determine whether an eligible
youth (see CPL 720.10 [1], [2]) is entitled to youthful offender
status, an appeal waiver would not foreclose review of the
court's failure to make that determination.   Here, the sentencing
court did, indeed, consider defendant's youthful offender status
upon his request.
          It is well settled that once considered, a youthful


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offender adjudication is a matter left to the sound discretion of
the sentencing court and therefore any review is limited (see CPL
720.20 [1] [a]).   As we held in Lopez, "when a defendant enters
into a guilty plea that includes a valid waiver of the right to
appeal, that waiver includes any challenge to the severity of the
sentence.   By pleading guilty and waiving the right to appeal, a
defendant has forgone review of the terms of the plea, including
harshness or excessiveness of the sentence" (People v Lopez, 6
NY3d 248, 256 [2006]).   To the extent defendant appeals the
harshness of his sentence or the sentencing court's exercise of
discretion in denying youthful offender status, his appeal waiver
forecloses the claim.
            We therefore conclude that a valid waiver of the right
to appeal, while not enforceable in the face of a failure to
consider youthful offender treatment, forecloses appellate review
of a sentencing court's discretionary decision to deny youthful
offender status once a court has considered such treatment.
Accordingly, our review of County Court's denial of defendant's
request is precluded by his appeal waiver, the validity of which
he does not contest (see People v Brabham, 83 AD3d 1225, 1225 [3d
Dept 2011]).




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People v Pacherille (Anthony N.)
No. 57




RIVERA, J.(dissenting):
          In People v Rudolph, we held that CPL 720.20 (1)
mandates "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"(21
NY3d 497, 501 [2013]).    We thus foreclosed any role for a
negotiated plea constraining youthful offender (YO) determination
because the legislative mandate that "a court decide whether [YO]
treatment is justified" provides an opportunity for juveniles to
"have a real likelihood of turning their lives around," and
therefore "is just too valuable, both to the offender and to the
community, to be sacrificed in plea bargaining" (id. at 501).
          The majority acknowledges that Rudolph prohibits the
defendant's waiver of YO consideration, but holds that a
defendant may expressly waive the right to appellate review of
the sentencing court's denial of YO status (majority op at 2-3).
I disagree with this interpretation of the statute and Rudolph.
Allowing for such a waiver merely serves to reestablish YO
consideration as a legally valid "chip" to be leveraged in the
plea bargaining process.    The majority's decision thus undermines
the legislative intent of CPL 710.20 (1), ignores the


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considerations we highlighted in Rudolph regarding the life-
changing impact of YO treatment for juveniles offenders, and
flies in the face of hard data on the ability of juveniles to
fully understand their legal rights and the consequences of their
choices.   I therefore dissent.
           Defendant, who is White and at the time of the crime
was a high school student, was charged with various hate crimes
for the attempted murder of an African American fellow student.
Just prior to the attack, defendant composed a suicide note that
included a diatribe against African Americans, Jews, and people
of other racial and ethnic groups.        Under the plea arrangement,
the People and defendant agreed that he would plead to attempted
murder in the second degree, as a non-hate crime, in full
satisfaction of the indictment, and in exchange for an 11-year
sentence recommendation.
           In extending the plea offer, the People demanded that
defendant admit that he chose the victim due to his race, that
defendant wrote the suicide note and that he agree to its
introduction into evidence as part of the record, and that he not
allege that he was the victim of bullying or make any other
excuses for his actions.   The People also required that defendant
waive his right to appeal.   During the plea allocution defendant
pleaded guilty to attempted murder in the second degree, and
admitted that he had shot the victim "because he was African
American."   As agreed, defendant made no mention of bullying by

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the victim.
           Prior to sentencing, defendant submitted a lengthy
memorandum requesting that the court grant YO treatment, arguing
that his crime was the result of mental illness, a mitigating
factor.   Then at the sentencing hearing, defense counsel argued
that defendant should be adjudicated a youthful offender,
pointing to defendant's mental illness and asserting that the
victim had bullied defendant in the past.   The presentence report
prepared by the Otsego County Probation Department recommended
that defendant not be adjudicated a youthful offender, and the
prosecutor also objected to a YO finding.
           County Court denied YO treatment and, pursuant to the
plea agreement, imposed a determinate sentence of 11 years, with
5 years' postrelease supervision.   At the sentencing hearing, the
court stated it considered the seriousness of the crime and its
racist and bigoted nature.   The court further discussed
defendant's mental illness, and concluded, "[a]lthough his
psychological needs are a mitigating factor to be considered in
determining the length of his sentence, the Court feels obligated
to note that his mental illness does not justify his conduct."
The Court then stated:
           "Today [defendant] asks the Court to vacate,
           that is essentially erase his conviction, and
           sentence him to little or no additional jail
           time as a youthful offender.
           "The Court has considered this request and
           denies it. Due to the violent nature of his

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          crime and its resulting harm and his
          admission during the plea allocution that his
          actions were racially motivated, the Court
          cannot say the interests of justice would be
          served by granting youthful offender status
          or by not imposing the agreed upon sentence."
          The Appellate Division affirmed defendant's conviction
(People v Pacherille, 106 AD3d 1136, 1137 [3d Dept 2013]).    As
relevant to the matter before us, the court concluded that
defendant's waiver of his right to appeal foreclosed his abuse of
discretion challenge to County Court's denial of his request for
YO treatment.   After the Appellate Division rendered its
decision, and while defendant's leave to appeal was pending
before this Court, we issued our decision in People v Rudolph.
          Pursuant to CPL 720.20 (1), "[u]pon 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."   We held in Rudolph that this legislative
mandate grants every eligible juvenile offender a right to a YO
determination (21 NY3d at 501).   We also held that this right is
"different," and stands in a unique position to other rights
afforded to defendants because it carries the potential for "a
fresh start, without a criminal record" (id.).   We therefore
concluded that unlike other rights, "even very important ones"
that a defendant may readily give up, the right to YO
consideration cannot be waived, either implicitly, by defendant's
mere silence in failing to request YO consideration, or


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expressly, as part of a plea bargain (id.).   In so holding, we
gave force to the mandatory language of CPL 720.20 (1), and
overruled People v McGowen (42 NY2d 905 [1977]), which had
required an eligible youth to assert the right to a youthful
offender adjudication or risk waiving it.
          Our decision in Rudolph was based on the explicit
statutory language of CPL 720.20 (1), and grounded in what we
recognized as the singular importance of the opportunities
attendant to a YO designation: the conviction being "vacated and
replaced by a youthful offender finding"; a limit on the maximum
sentence in a felony case; the sealing of records; and the
avoidance of certain disabilities, "including disqualification
from public office and public employment" (id. at 500-01).    There
can be no serious disagreement about the impact of a YO
determination on a juvenile.   It is nothing short of the
opportunity for a young offender to become "a lawabiding,
productive member of society" (id. at 501; see also id. at 505
[Graffeo, J., concurring] ["article 720 permits the sentencing
court to vacate a criminal conviction that has been lawfully
obtained -- an extraordinary benefit unlike any other right
granted in the Criminal Procedure Law.   In adopting such a
procedure, the legislature meant to ameliorate the sometimes
harsh effect of trying eligible youth in adult courts"]).
          Given our interpretation in Rudolph of the mandatory
language of CPL 720.20 (1) that YO determinations are

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nonwaivable, as well as our recognition of the unparalleled role
that a YO determination serves in our criminal justice system, I
would find the Appellate Division erroneously concluded that
defendant waived appellate review of the County Court's denial of
YO status.   To prohibit a plea bargain that forecloses
statutorily mandated YO consideration by the sentencing court,
but permits a plea bargain that forecloses review as to whether
the court abused its discretion in denying YO treatment,
undermines the legislative goals of section 720.20 (1).    Counter
to the purpose of that section, it would mean little to an
eligible youth to be considered for YO treatment only to be left
with no recourse to challenge a court's wrongful denial.
Moreover, to permit a waiver of appellate review would allow a
prosecutor to do indirectly what we said in Rudolph the statute
explicitly forbids, namely, to bargain with a defendant for the
right to judicial consideration of YO status and the opportunity
for a new beginning (Rudolph, 21 NY3d at 501).   Our decision in
Rudolph could not be more direct in its conclusion that YO
determinations are exempt from waivers negotiated as part of a
plea.   The defendant's nonwaivable right extends to appellate
review of a denial of YO status.   To hold otherwise, as the
majority does, risks derogation of a defendant's right to the
opportunity for the precious "fresh start," which is the essence
of the YO process.
           Apart from the legislative goals and purposes that we

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identified in Rudolph as the basis for prohibiting waiver of YO
consideration, further support for a decision that defendant
cannot waive appellate review is found in society's and the
United States Supreme Court's recognition of the limited capacity
of juveniles to make decisions with the type of loaded future
consequences that characterize an appeal of a negative YO
determination.   "It is generally accepted and well established
that young people and adults mature at different rates and that
children simply do not have the capacity to fully appreciate the
world and the consequences of their actions and choices" (People
v Perez, 23 NY3d 89, 109 [2014] [Rivera, J., dissenting]).     As
the Unites States Supreme Court has stated, "[c]hildren generally
are less mature and responsible than adults; often lack the
experience, perspective, and judgment to recognize and avoid
choices that could be detrimental to them; [and] . . . are more
vulnerable or susceptible to . . . outside pressures than adults"
J.D.B. v N. Carolina, 131 S Ct 2394, 2403 [2011] [citations and
internal quotation marks omitted]).    Indeed,
          "Studies have established that juveniles are
          unable to fully understand and appreciate
          their legal rights (see e.g. Graham v
          Florida, 560 US 48, 68 [2010] ["developments
          in psychology and brain science continue to
          show fundamental differences between juvenile
          and adult minds"]). The neuroscience research
          data confirms juveniles do not possess the
          maturity necessary to make decisions that, in
          the case of criminal convictions, carry
          lifelong consequences (see e.g. Nitin Gogtay
          et al., Dynamic Mapping of Human Cortical
          Development During Childhood Through Early

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                                 - 8 -                        No. 57

          Adulthood, Proc Natl Acad Sci, vol 101, No.
          21 at 8177 [May 25, 2004]1; Linda Spear, The
          Behavioral Neuroscience of Adolescence,
          108-111 [2009]). The inescapable conclusion
          is that the inherent differences between
          young people and adults impact on a defendant
          minor's ability to appreciate and respond to
          the requirements of the appellate review
          process (see e.g. Laurence Steinberg et al.,
          Age Differences in Future Orientation and
          Delay Discounting, Child Dev, vol 80, No. 1
          at 30, 35-36 [Jan./Feb. 2009])"
(Perez, 23 NY3d 89, 109-10 [Rivera, J., dissenting]).
          The majority's decision is at odds with the United
States Supreme Court and society's understanding based on this
research, which makes plain that juveniles are not adults and
should not be treated as such.    We cannot ignore that
"developments in the body of knowledge concerning juvenile
development underscore the need for judicial procedures that are
solicitous of the interests of vulnerable youth, especially under
New York's current youthful offender process in which guilt is
determined in the context of a criminal justice system designed
for adults" (see Rudolph, 21 NY3d at 506).
          Nonetheless, the majority stands mute in the face of
this reality.   Instead, the majority relies on People v Lopez (6
NY3d 248 [2006]) in support of its conclusion that defendant may
waive appellate review of an unfavorable YO determination.
However, we have never applied Lopez in the context of a YO

     1
       Available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC419576/pdf/1018174.pd
f (last accessed April 20, 2014).

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finding, and we should not do so in this case.2
           In Lopez, this Court reiterated that "generally, an
appeal waiver will encompass any issue that does not involve a
right of constitutional dimension going to 'the very heart of the
process' " (id. at 255, quoting People v Hansen, 95 NY2d 227, 230
[2000]).   Such waivers, the Court noted, facilitate "prompt,
effective resolution of criminal litigation" (id.) and, "in
connection with a negotiated plea and sentence," reflect the
defendant's agreement "to end the proceedings entirely at the
time of sentencing and to accept as reasonable the sentence
imposed" (id.).   The Court therefore held that "a defendant may
not subsequently eviscerate [a plea] bargain by asking an
appellate court to reduce the sentence in the interest of
justice" (id. at 255-56).   The Court highlighted the "important
goals of fairness and finality in criminal matters are
accomplished only insofar as the parties are confident that the
'carefully orchestrated bargain' of an agreed-upon sentence will
not be disturbed as a discretionary matter" (id. at 256).
           The Lopez Court's concern with the integrity of the
plea bargain process is simply not present in the YO context
because a defendant cannot barter the right to YO consideration.


     2
       In briefing to this Court, neither the People nor
defendant addressed the waiver of appellate review of youthful
offender consideration. Indeed, the prosecutor's statements
during oral argument suggest that he interpreted Rudolph to
prohibit such waiver.

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As CPL 720.20 (1) provides, every convicted eligible youth must
be considered for youthful offender status.   In Rudolph, we made
clear that a guilty plea could not eliminate, by its terms, this
statutorily-mandated YO determination by the sentencing court.
Thus, there is no carefully orchestrated plea bargain
"eviscerated" by appellate consideration because there is no
bargain related to a YO finding.   Moreover, while a prosecutor
may back away from a plea agreement in those cases where the
court grants YO status, a prosecutor cannot avoid a court's
determination that an eligible youth should benefit from YO
treatment (Rudolph, 21 NY3d at 502).
          As a practical and policy matter, the administrative
efficiency concerns and the desire for finality referenced by
Lopez are no more compelling than the assurance that a trial
court has properly considered a youthful offender's opportunity
for YO status.   Appellate review is essential to the statutory
mandate that a court must consider YO for every eligible youth so
that every eligible youth has a chance at avoiding a criminal
record and the disastrous consequences that flow therefrom.
          Apart from whether defendant could have waived or, in
fact, did waive his appellate rights of review, defendant argues
his plea agreement prevented him from presenting evidence of
mitigating circumstances in support of his request for YO
treatment.   Although the majority does not address this
contention, other than to conclude that County Court actually

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considered defendant's request for YO treatment (maj op at 3),
defendant's argument finds some support in the record.
            It is undisputed that defendant's plea required that he
admit a racial motivation for the crime, and it is this admission
of a race-based motive that the court considered in denying YO
status.   However, if the plea prevented defendant from presenting
a basis for a favorable YO determination, the plea would run
counter to our holding in Rudolph.      Thus, regardless of whether
defendant could waive appellate review of the sentencing court's
discretionary consideration of YO treatment, the Appellate
Division should have considered whether the plea, as structured,
foreclosed defendant's arguments that his actions were not
racially motivated, or otherwise limited his ability to
adequately present mitigating factors impacting defendant's
behavior.
            The Appellate Division here denied defendant the
opportunity to argue that the plea violated the right to YO
consideration afforded him under CPL 720.20 (1), as recognized in
our holding in Rudolph.    The majority concludes that juveniles
may waive this right, even when the challenge is that the plea
forecloses arguments favorable to the defendant's request.     For
the reasons I have stated, I find that decision unsupported by
law, reason, society's understanding of the difference between
young people and adults, and the ever-increasing appreciation of
our criminal justice system's impact on young lives.     I dissent.

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*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Judges Read, Pigott,
Abdus-Salaam and Fahey concur. Judge Rivera dissents in an
opinion in which Chief Judge Lippman concurs. Judge Stein took
no part.

Decided May 12, 2015




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