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

1200
KA 10-01828
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHANIEL FLAGG, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 24, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Onondaga County Court for
further proceedings in accordance with the following Memorandum: On
appeal from a judgment convicting him upon his plea of guilty of
robbery in the second degree (Penal Law § 160.10 [2] [b]), defendant
contends that County Court erred in failing to rule on his
applications to be adjudicated a youthful offender. Defendant, an
apparently eligible youth (see CPL 720.10 [2]), pleaded guilty
pursuant to a plea bargain that included a promised sentence and a
waiver of the right to appeal, but there was no mention during the
plea proceedings whether he would be afforded youthful offender
treatment. At sentencing, defense counsel made several applications
for youthful offender treatment but, without expressly ruling on them,
the court imposed a sentence that was incompatible with youthful
offender treatment.

     “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]). A sentencing court must
determine whether to grant youthful offender treatment with respect 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 sacrificed in plea bargaining” (People v
Rudolph, 21 NY3d 497, 501). “[W]e cannot deem the court’s failure to
rule on the . . . [applications] as . . . denial[s] thereof” (People v
                                 -2-                         1200
                                                        KA 10-01828

Spratley, 96 AD3d 1420, 1421, following remittal 103 AD3d 1211, lv
denied 21 NY3d 1020; see People v Ingram, 18 NY3d 948, 949; People v
Chattley, 89 AD3d 1557, 1558). Furthermore, even if the court had
denied the applications, there is no information in this record from
which we could ascertain whether the court properly did so in the
exercise of its discretion, or whether it improperly acceded to the
prosecutor’s plea conditions. We therefore hold the case 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:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
