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

1199
KA 12-01588
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PATRICK D. POTTER, DEFENDANT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered August 6, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted sexual abuse in the
first degree (two counts).

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Cattaraugus County Court for
further proceedings in accordance with the following Memorandum: On
appeal from a judgment convicting him upon his plea of guilty of two
counts of attempted sexual abuse in the first degree (Penal Law §§
110.00, 130.65 [3]), defendant contends that County Court erred in
failing to rule on his applications to be adjudicated a youthful
offender. 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. At
sentencing, defense counsel made several applications for defendant to
be treated as a youthful offender, but the court did not expressly
rule on them; instead, 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 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). “[W]e cannot deem the court’s failure to rule on the
. . . [applications] as . . . denial[s] thereof” (People v Spratley,
                                 -2-                         1199
                                                        KA 12-01588

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 the 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 whether
defendant should be granted youthful offender status (see Rudolph, 21
NY3d at 503).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
