

People v Youmans (2016 NY Slip Op 04970)





People v Youmans


2016 NY Slip Op 04970


Decided on June 22, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 22, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.


2013-03708
 (Ind. No. 10045/12)

[*1]The People of the State of New York, respondent,
vShamel Youmans, appellant.


Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky of counsel; Gregory Musso on the brief), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gubbay, J.), rendered March 4, 2013, convicting him of robbery in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
Criminal Procedure Law § 720.20(1) requires "that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain" (People v Rudolph, 21 NY3d 497, 501; see People v Ayende, 133 AD3d 771, 771). Here, as the People correctly concede, the record does not demonstrate that the Supreme Court considered whether the defendant should be afforded youthful offender status. Under these circumstances, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment (see People v Ayende, 133 AD3d at 771; People v T.E., 131 AD3d 1067, 1068; People v Stevens, 127 AD3d 791, 792; People v Ojomo, 126 AD3d 1011, 1011). We express no opinion as to whether the Supreme Court should afford youthful offender treatment to the defendant.
RIVERA, J.P., ROMAN, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


