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

657
KA 09-00861
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON S. HALL, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered April 22, 2009. The judgment convicted defendant, upon
his plea of guilty, of burglary in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him, upon his guilty plea, of
burglary in the first degree (Penal Law § 140.30 [2]). By failing to
move to withdraw his plea of guilty or to vacate the judgment of
conviction, defendant failed to preserve for our review his challenge
to the factual sufficiency of the plea allocution (see People v Lopez,
71 NY2d 662, 665; People v Hawkins, 94 AD3d 1439, 1440, lv denied 19
NY3d 974). Contrary to defendant’s contention, this case does not
fall within the narrow exception to the preservation requirement
because nothing in the plea allocution “clearly casts significant
doubt upon the defendant’s guilt or otherwise calls into question the
voluntariness of the plea” (Lopez, 71 NY2d at 666; see People v
Moorer, 63 AD3d 1590, 1590-1591, lv denied 13 NY3d 837).

     As defendant further contends and the People correctly concede,
however, the court erred in failing to determine whether defendant
should be afforded youthful offender status. Defendant, an eligible
youth, pleaded guilty pursuant to a plea bargain that included a
promised sentence. There was no mention during the plea proceedings
whether defendant would be adjudicated a youthful offender. “Upon
conviction of an eligible youth, the court must order a [presentence]
investigation of the defendant. After receipt of a written report of
the investigation and at the time of pronouncing sentence the court
must determine whether or not the eligible youth is a youthful
offender” (CPL 720.20 [1]). The sentencing court must make “a
youthful offender determination in every case where the defendant is
                                 -2-                           657
                                                         KA 09-00861

eligible, even where the defendant fails to request it, or agrees to
forgo it as part of a plea bargain” (People v Rudolph, 21 NY3d 497,
501; see People v Scott, 115 AD3d 1342, 1343; People v Smith, 112 AD3d
1334, 1334). We therefore hold the case, reserve decision on any
issues not addressed herein, and remit the matter to County Court to
make and state for the record “a determination of whether defendant is
a youthful offender” (Rudolph, 21 NY3d at 503).




Entered:   July 3, 2014                        Frances E. Cafarell
                                               Clerk of the Court
