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

293
KA 12-02053
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PERCY L. SCOTT, 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 (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered June 16, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Erie County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him, upon his plea of guilty, of
attempted murder in the second degree (Penal Law §§ 110.00, 125.25
[1]). Defendant contends that County Court erred in failing to
determine whether he was eligible for youthful offender status.
Defendant, an eligible youth, pleaded guilty pursuant to a plea
bargain that included a promised sentence and a waiver of the right to
appeal. There was no mention during the plea proceedings whether he
would be afforded 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 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 sacrificed in plea bargaining” (People v Rudolph, 21
NY3d 497, 501).

     We therefore hold the case and remit the matter to County Court
to make and state for the record a determination whether defendant
should be afforded youthful offender status (see Rudolph, 21 NY3d at
                            -2-                  293
                                           KA 12-02053

503).




Entered:   March 28, 2014         Frances E. Cafarell
                                  Clerk of the Court
