PEOPLE v. SMITH (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Eugene M. Guarino, J.), rendered November 29, 2023, 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 and as a matter of discretion in the interest of justice, (1) by vacating the sentence imposed, and (2) by 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 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).  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. Powell, 208 A.D.3d 1366, 1366–1367, 174 N.Y.S.3d 608).  In light of our determination, the defendant's contention that the sentence imposed was excessive has been rendered academic (see id.;  People v. Johnson, 193 A.D.3d 1076, 1077, 143 N.Y.S.3d 222).

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. Powell, 208 A.D.3d at 1366–1367, 174 N.Y.S.3d 608).

The defendant's contentions with respect to orders of protection issued at the time of sentencing are unpreserved for appellate review, and we decline to reach them in the exercise of our interest of justice jurisdiction (see People v. Thomas, 193 A.D.3d 889, 142 N.Y.S.3d 390;  People v. Castillo, 174 A.D.3d 918, 918, 103 N.Y.S.3d 317).

BARROS, J.P., DOWLING, VENTURA and MCCORMACK, JJ., concur.