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

946
KA 13-00053
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CASEY BROWNELL, DEFENDANT-APPELLANT.


JAMES QUINN AURICCHIO, BUFFALO, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered June 10, 2011. The judgment convicted defendant,
upon his plea of guilty, of burglary in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to Wayne
County Court for resentencing in accordance with the following
Memorandum: On appeal from a judgment convicting him upon his plea of
guilty of burglary in the first degree (Penal Law § 140.30 [2]),
defendant contends that County Court erred in failing to determine
whether he was eligible for youthful offender status. We agree.
There was no mention of defendants eligibility for youthful offender
status during the plea, and defense counsel noted at sentencing that,
although defendant was eligible for such status, “we are all aware of
what is set out in the Pre-Plea Investigation in that regard, and he
understands that [it] is not part of the plea agreement.”

     “After receipt of a written report of the [preplea or
presentence] 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]). In People v Rudolph (___ NY3d ___ [June
27, 2013]), the Court of Appeals held that section 720.20 mandates
that, when the sentence is imposed, the sentencing court must
determine whether to grant youthful offender status to every defendant
who is eligible for it. The Court of Appeals stated that “[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” (id. at
___). Here, although defense counsel’s statements unequivocally
established that a determination had been made not to afford defendant
youthful offender status, it is unclear whether that determination was
made by the court, as required by section 720.20, rather than by the
prosecutor. Consequently, we modify the judgment by vacating the
sentence, and we remit the matter to County Court to determine and to
state for the record “whether defendant is a youthful offender”
                                 -2-                           946
                                                         KA 13-00053

(Rudolph, ___ NY3d at ___).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
