People v. Blanton

179 A.D.3d 715

113 N.Y.S.3d 563 (Mem)

The PEOPLE, etc., Respondent,

v.Taishawn BLANTON, Appellant.

2018-04450

S.C.I. No. 189/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 18, 2019

January 8, 2020

Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jie Gao of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), rendered February 27, 2018, convicting him of attempted criminal possession of a weapon in the second 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, Queens County, for further proceedings in accordance herewith.

CPL 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 forgo it as part of a plea bargain" ( People v. Rudolph , 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Here, as the People concede, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status (see People v. Alleyne , 169 A.D.3d 710, 711, 91 N.Y.S.3d 702 ; People v. Foster , 162 A.D.3d 790, 75 N.Y.S.3d 91, 75 N.Y.S.3d 91 ; People v. Mead , 159 A.D.3d 1040, 1041, 70 N.Y.S.3d 579 ). Accordingly, we vacate the sentence imposed and remit the matter to the Supreme Court, Queens County, to determine whether the defendant should be adjudicated a youthful offender, and for resentencing thereafter (see People v. Alleyne , 169 A.D.3d at 711, 91 N.Y.S.3d 702 ; People v. Foster , 162 A.D.3d at 790, 75 N.Y.S.3d 91 ; People v. Mead , 159 A.D.3d at 1041, 70 N.Y.S.3d 579 ).

MASTRO, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.