PEOPLE v. MEAD (2018)

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (ShawnDya L. Simpson, J.), imposed July 20, 2016, upon remittitur from this Court for resentencing (see People v. Mead, 134 A.D.3d 960, 961, 22 N.Y.S.3d 492), upon her conviction of gang assault in the second degree, upon a jury verdict.

ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In October 2012, the defendant was convicted, upon a jury verdict, of gang assault in the second degree.  On a prior appeal by the defendant, this Court determined that the Supreme Court had failed to consider whether the defendant should be treated as a youthful offender (see People v. Mead, 134 A.D.3d 960, 22 N.Y.S.3d 492).  Therefore, the judgment was modified by vacating the defendant's sentence, and the matter was remitted to the Supreme Court, Kings County, for resentencing after a determination by that court as to whether the defendant should be adjudicated a youthful offender (see id.).

At resentencing, however, the Supreme Court failed to make such a determination on the record.  CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, “at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.”  Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment (see People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457;  People v. T.E., 131 A.D.3d 1067, 1068, 16 N.Y.S.3d 587;  People v. Dawkins, 131 A.D.3d 482, 483, 13 N.Y.S.3d 908;  People v. Stevens, 127 A.D.3d 791, 792, 4 N.Y.S.3d 546).  Such a determination must be explicit, even if it is apparent from the record of the sentencing proceeding that the court did not believe a defendant was entitled to youthful offender treatment (see People v. Basono, 122 A.D.3d 553, 553, 997 N.Y.S.2d 415).

Accordingly, the defendant's resentence must be reversed and the matter remitted to the Supreme Court, Kings County, for resentencing after a determination is made, on the record, as to whether the defendant should be adjudicated a youthful offender (see People v. Rudolph, 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457;  People v. McEachern, 145 A.D.3d 741, 742, 43 N.Y.S.3d 425;  People v. Henry, 143 A.D.3d 1001, 39 N.Y.S.3d 802;  People v. Youmans, 140 A.D.3d 1097, 33 N.Y.S.3d 744;  People v. Eric P., 135 A.D.3d 882, 883, 23 N.Y.S.3d 379).

SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS–RADIX, JJ., concur.