People v. Powell

208 A.D.3d 1366

174 N.Y.S.3d 608 (Mem)

The PEOPLE, etc., respondent,

v.Zhamir POWELL, appellant.

2020-01598

Ind. No. 6992/18

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

Submitted—September 6, 2022

September 28, 2022

Patricia Pazner, New York, NY (David Fitzmaurice of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, and Coby Ballard of counsel), for respondent.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barry E. Warhit, J., at plea; Matthew Sciarrino, J., at sentence), rendered January 14, 2020, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by (1) vacating the sentence imposed, and (2) vacating the imposition of a mandatory surcharge and fees; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

CPL 720.20 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 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). As the People correctly concede, the record does not demonstrate that the Supreme Court made a youthful offender determination despite the defendant's eligibility. Accordingly, we vacate the sentence and remit the matter to the Supreme Court, Kings County, for resentencing after making a determination as to whether the defendant should be afforded youthful offender treatment (see People v. Thompson, 203 A.D.3d 961, 161 N.Y.S.3d 830 ; People v. Downing, 200 A.D.3d 704, 705, 159 N.Y.S.3d 153 ).

In light of our determination, the defendant's contention that the sentence imposed was excessive has been rendered academic (see People v. Johnson, 193 A.D.3d 1076, 1077, 143 N.Y.S.3d 222 ; People v. Allen, 179 A.D.3d 941, 942, 114 N.Y.S.3d 250 ).

As consented to by the People, we further modify the judgment by vacating the surcharge and fees imposed (see CPL 420.35[2–a] ; People v. Green, 205 A.D.3d 1051, 1053, 166 N.Y.S.3d 892 ; People v. Hunter, 203 A.D.3d 752, 753, 160 N.Y.S.3d 640 ).

LASALLE, P.J., MILLER, GENOVESI and WAN, JJ.,...