           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

709
KA 12-00383
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SHAWN WHALEN, 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 (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered November 23, 2011. The judgment
convicted defendant, upon his plea of guilty, of robbery 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
Supreme Court, Erie County, for resentencing in accordance with the
following Memorandum: Defendant appeals from a judgment convicting
him upon his plea of guilty of robbery in the first degree (Penal Law
§ 160.15 [3]). As the People correctly concede, Supreme 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 Beasley, 86 AD3d 932, 932; People v Lee, 79 AD3d 1641,
1641). We thus modify the judgment by vacating the sentence, and we
remit the matter to Supreme Court for resentencing following a
determination whether defendant should be sentenced as a youthful
offender (see Beasley, 86 AD3d at 932). In view of our determination,
we do not address defendant’s remaining contentions, which concern the
waiver of the right to appeal and the severity of the sentence.




Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
