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

1146
KA 14-01213
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CURTIS N. HENDERSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 20, 2010. The judgment
convicted defendant, upon his plea of guilty, of manslaughter 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, Onondaga County,
for further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon his plea of
guilty of manslaughter in the first degree (Penal Law § 125.20 [1]).
Even assuming, arguendo, that defendant’s challenge to the sufficiency
of the Miranda warnings provided to him prior to his interrogation is
preserved for our review (see People v Smith, 22 NY3d 462, 465; cf.
People v Louisias, 29 AD3d 1017, 1018-1019, lv denied 7 NY3d 814), we
conclude that it is without merit. “[T]he warnings adequately
conveyed that defendant had the right not only to have a lawyer
present during the entire questioning but to ask for or access that
lawyer at any point during the questioning” (People v Barber-
Montemayor, 138 AD3d 1455, 1455, lv denied 28 NY3d 926).

     We reject defendant’s further contention that Supreme Court
abused its discretion in denying his pro se request to withdraw his
guilty plea without conducting an evidentiary hearing. The court
afforded defendant the requisite opportunity to present his
contentions (see People v Tinsley, 35 NY2d 926, 927), and defendant’s
claim that he pleaded guilty because of duress arising from, inter
alia, an alleged assault by a jail deputy was belatedly raised (see
People v Nash [appeal No. 1], 288 AD2d 937, 937, lv denied 97 NY2d
686; People v Hanley, 255 AD2d 837, 838, lv denied 92 NY2d 1050),
contradicted by his statements during the plea colloquy (see People v
McKoy, 60 AD3d 1374, 1374, lv denied 12 NY3d 856; Hanley, 255 AD2d at
837-838), and entirely uncorroborated (see Nash, 288 AD2d at 937;
                                 -2-                          1146
                                                         KA 14-01213

People v Morris, 107 AD2d 973, 974-975; cf. People v Flowers, 30 NY2d
315, 317-319). Under those circumstances, the court was entitled to
determine that defendant’s allegation was “a belated maneuver that had
no foundation in truth,” and thus that an evidentiary hearing was not
required (People v Cannon [appeal No. 1], 78 AD3d 1638, 1638, lv
denied 16 NY3d 742; cf. People v Brown, 14 NY3d 113, 116). In
addition, we conclude that the record does not support defendant’s
contention that defense counsel took a position adverse to him in
connection with the plea withdrawal request (see People v Pimentel,
108 AD3d 861, 862-863, lv denied 21 NY3d 1076; People v Sylvan, 108
AD3d 869, 871, lv denied 22 NY3d 1091; cf. People v King, 129 AD3d
992, 993).

     We agree with defendant, however, that the court erred in failing
to determine at sentencing whether he should be afforded youthful
offender status (see People v Rudolph, 21 NY3d 497, 501). Contrary to
the People’s contention, the court’s statements during the plea
proceeding to the effect that it was not inclined to grant defendant
youthful offender status do not obviate the need for remittal (see
People v Eley, 127 AD3d 583, 584; see also People v Gutierrez, 140
AD3d 407, 408; People v Munoz, 117 AD3d 1585, 1585). Moreover,
inasmuch as a youthful offender determination must be made “in every
case where the defendant is eligible” (Rudolph, 21 NY3d at 501), we
reject the People’s contention that remittal “would be futile and
pointless” here. We therefore hold the case, reserve decision, and
remit the matter to Supreme Court to make and state for the record a
determination whether defendant should be afforded youthful offender
status. In view of our determination, we do not address
defendant’s challenge to the severity of the sentence.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
