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

1330
KA 12-01876
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DESTINY BELLAUS, DEFENDANT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE C. 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 July 9, 2012. The judgment convicted
defendant, upon her plea of guilty, of assault in the second degree.

     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 her upon her plea of guilty of
assault in the second degree (Penal Law § 120.05 [2]), defendant
contends that County Court erred in failing to adjudicate her a
youthful offender. “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]). Here, at the
time of sentencing, the court failed to determine whether defendant,
an apparently eligible youth, is a youthful offender. “[W]e cannot
deem the court’s failure to rule on the . . . [issue] as a denial
thereof” (People v Spratley, 96 AD3d 1420, 1421, following remittal
103 AD3d 1211, lv denied 21 NY3d 1020; see also People v Koons, ___
AD3d ___ [Dec. 27, 2013]). We therefore hold the case, reserve
decision, and remit the matter to County Court to make and state for
the record “a determination of whether defendant is a youthful
offender” (People v Rudolph, 21 NY3d 497, 503).




Entered:   January 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
