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

1180
KA 09-01271
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERALD GIBSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.) rendered March 17, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum: In
appeal No. 1, defendant appeals from a judgment convicting him upon
his plea of guilty of attempted assault in the second degree (Penal
Law §§ 110.00, 120.05 [2]) and, in appeal No. 2, he appeals from
another judgment convicting him upon his plea of guilty of
manslaughter in the first degree (§ 125.20). In both appeals,
defendant contends that Supreme Court erred in failing to make a
determination whether he should be adjudicated a youthful offender.
Defendant, an eligible youth, pleaded guilty pursuant to a plea
bargain that included promised sentences, and a waiver of the right to
appeal covering both convictions. The court did not indicate during
the plea proceedings whether it would adjudicate defendant a youthful
offender, and the terms of the plea bargain did not address the issue.
At sentencing, the court did not expressly rule on the issue, although
the sentence imposed on the conviction in appeal No. 2 was
incompatible with youthful offender treatment.

     It is well settled that “at the time of pronouncing sentence the
court must determine whether or not the eligible youth is a youthful
offender” (CPL 720.20 [1]). A sentencing court must determine whether
to grant youthful offender status to every defendant who is eligible
for it because, inter alia, “[t]he judgment of a court as to which
young people have a real likelihood of turning their lives around is
just too valuable, both to the offender and to the community, to be
                                 -2-                          1180
                                                         KA 09-01271

sacrificed in plea bargaining” (People v Rudolph, 21 NY3d 497, 501).
Thus, “[t]he 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’ ” (People v Hall, 119 AD3d 1349, 1350, quoting
Rudolph, 21 NY3d at 501). Here, as the People correctly concede, the
record fails to establish that such a determination was made in either
appeal No. 1 or appeal No. 2 and, therefore, we hold the cases,
reserve decision, and remit the matters to Supreme Court to make and
state for the record a determination in each case whether defendant is
a youthful offender (see People v Barnes, 119 AD3d 1374, 1375; People
v Munoz, 117 AD3d 1585, 1585-1586).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
