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

271
KA 11-01844
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMMANUEL D. LITTLE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a sentence of the Monroe County Court (James J.
Piampiano, J.), rendered June 23, 2011. Defendant was sentenced upon
his conviction of manslaughter in the second 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
was convicted following a jury trial of murder in the second degree
(Penal Law § 125.25 [2] [depraved indifference murder]), criminal
possession of a weapon in the second degree (§ 265.03 [former 1]), and
criminal possession of a weapon in the third degree (§ 265.02 [former
4]). County Court sentenced defendant to an indeterminate term of
imprisonment of 20 years to life for the murder conviction, and to
determinate terms of imprisonment for the weapons offenses. On a
prior appeal, we modified the judgment by reducing the murder
conviction to manslaughter in the second degree (§ 125.15 [1]) and
vacating the sentence imposed on that count of the indictment, and we
remitted the matter to County Court for sentencing on the reduced
count (People v Little, 83 AD3d 1389). Upon remittal, the court
sentenced defendant to an indeterminate term of imprisonment of 5 to
15 years for manslaughter in the second degree.

     Defendant now contends that the court erred in failing to
determine whether he should be adjudicated a youthful offender. We
agree (see People v Rudolph, 21 NY3d 497, 501). It is true, as the
People note, that the weapons offenses of which defendant was
convicted are “armed” felonies for purposes of the youthful offender
statute (CPL 720.10 [2] [a]; see CPL 1.20 [41]), and that defendant,
who was the sole participant in the crimes, is thus “eligible to be
adjudicated a youthful offender only if the court determined that
there were ‘mitigating circumstances that bear directly upon the
manner in which the crime[s were] committed’ ” (People v Lugo, 87 AD3d
                                 -2-                           271
                                                         KA 11-01844

1403, 1405, lv denied 18 NY3d 860, quoting CPL 720.10 [3]). When
defendant was initially sentenced on the weapons offenses, however, he
also stood convicted of murder in the second degree, a class A-I
felony, which rendered him ineligible for youthful offender status.
He therefore had no reason to request youthful offender status at that
time. Once the murder conviction was vacated and the matter was
remitted for sentencing on the reduced count, defendant requested
youthful offender treatment and the court, in sentencing him as an
adult on the manslaughter conviction, failed to rule on his request.
We therefore hold the case, reserve decision and remit the matter to
County Court to determine whether defendant is “eligible” for youthful
offender treatment despite his conviction of the armed felony offenses
and, if so, whether he should be afforded such treatment.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
