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

201
KA 15-00476
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN A. DUKES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 13, 2015. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree and criminal sexual act in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Monroe County,
for further proceedings 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 [4]) and
criminal sexual act in the first degree (§ 130.50 [1]). On a prior
appeal, we reversed the judgment, vacated the plea, and remitted the
matter to Supreme Court on the ground that the court had “erred in
accepting [defendant’s] plea without ensuring that he was making an
informed decision to waive a potential affirmative defense to the
robbery charge” (People v Dukes, 120 AD3d 1597, 1597). On remittal,
defendant entered the same plea and received the same sentence.
Defendant now contends that the court erred in failing to make a
reasoned determination whether he should be afforded youthful offender
status. We agree.

     Where, as here, “a defendant has been convicted of an armed
felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a)
(ii) or (iii), and the only barrier to his or her youthful offender
eligibility is that conviction, the court is required to determine on
the record whether the defendant is an eligible youth by considering
the presence or absence of the factors set forth in CPL 720.10 (3).
The court must make such a determination on the record ‘even where
[the] defendant has failed to ask to be treated as a youthful
offender, or has purported to waive his or her right to make such a
request’ pursuant to a plea bargain . . . If the court determines, in
its discretion, that neither of the CPL 720.10 (3) factors exist and
                                 -2-                           201
                                                         KA 15-00476

states the reasons for that determination on the record, no further
determination by the court is required. If, however, the court
determines that one or more of the CPL 720.10 (3) factors are present,
and the defendant is therefore an eligible youth, the court then ‘must
determine whether or not the eligible youth is a youthful offender’ ”
(People v Middlebrooks, 25 NY3d 516, 527-528 [emphasis added]).

     Here, the court did not state on the record its reasons for
determining that neither of the CPL 720.10 (3) factors exists, as
required by Middlebrooks, and it did not otherwise “demonstrat[e] that
it implicitly resolved the threshold issue of eligibility in . . .
defendant’s favor” (People v Stitt, 140 AD3d 1783, 1784, lv denied 28
NY3d 937). We therefore hold the case, reserve decision, and remit
the matter to Supreme Court to state for the record its reasons for
determining that neither of the CPL 720.10 (3) factors is present (see
People v Quinones, 129 AD3d 1699, 1700; People v Stewart, 129 AD3d
1700, 1701).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
