           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
844
KA 10-00548
PRESENT: SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

TONEY BEASLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered March 5, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to Erie
County Court for resentencing in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him upon his
plea of guilty of burglary in the first degree (Penal Law § 140.30
[4]). We agree with defendant that County Court erred in failing to
set forth on the record its determination denying defendant’s request
for youthful offender treatment (see CPL 720.20 [1]; People v Lee, 79
AD3d 1641; cf. People v Wargula, ___ AD3d ___ [July 1, 2011]). We
therefore modify the judgment by vacating the sentence, and we remit
the matter to County Court for resentencing after a determination
whether defendant should be sentenced as a youthful offender (see Lee,
79 AD3d at 1641-1642).




Entered:   July 1, 2011                            Patricia L. Morgan
                                                   Clerk of the Court
