

People v Gutierrez (2016 NY Slip Op 04304)





People v Gutierrez


2016 NY Slip Op 04304


Decided on June 2, 2016


Appellate Division, First 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 2, 2016

Acosta, J.P., Saxe, Gische, Webber, Kahn, JJ.


2478/12 1350 2303/13

[*1]The People of the State of New York, Respondent,
vWanel Gutierrez, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Judgments, Supreme Court, New York County (Gregory Carro, J.), rendered February 26, 2014, convicting defendant, upon his pleas of guilty, of burglary in the third degree and grand larceny in the fourth degree, and sentencing him to concurrent terms of one year, unanimously modified, on the law, to the extent of vacating the larceny sentence and remanding for a youthful offender determination on that conviction only, and otherwise affirmed.
The court sufficiently advised defendant of the rights he was giving up by pleading guilty, "notwithstanding that it omitted the word  jury' from its reference[s] to giving up the right to a trial" (People v Williams, 137 AD3d 706, 706 [1st Dept 2016]).
Defendant was ineligible to be considered for youthful offender treatment in connection with his burglary conviction because he was 19 years old when the offense was committed. However, although it is clear from the discussion of YO treatment during plea proceedings that the court was not inclined to grant such treatment on the larceny conviction, the court did not make the requisite explicit determination on the record at the sentencing proceeding, requiring that the matter be remanded for that purpose (see People v Rudolph, 21 NY3d 497 [2013]; People v Basono, 122 AD3d 553 [1st Dept 2014], lv denied 25 NY3d 1069 [2015]; People v Smith, 113 AD3d 453 [1st Dept 2014]).
We perceive no basis for reducing the sentences.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 2, 2016
CLERK


