PEOPLE v. FOSTER (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph E. Gubbay, J.), rendered January 4, 2016, convicting him of robbery 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, Kings County, for further proceedings consistent herewith.

CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is an “eligible youth” (CPL 720.10[2];  see People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457;  People v. Hall, 160 A.D.3d 896, 73 N.Y.S.3d 898).  Here, as the People correctly concede, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court made such a determination.  A determination as to whether to afford a defendant youthful offender treatment “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” (People v. Mead, 159 A.D.3d 1040, 1041, 70 N.Y.S.3d 579).  Accordingly, we must vacate the sentence imposed and remit the matter to the Supreme Court, Kings County, to determine whether the defendant should be adjudicated a youthful offender, and for resentencing thereafter (see People v. Hall, 160 A.D.3d 896, 73 N.Y.S.3d 898;  People v. Mead, 159 A.D.3d at 1041, 70 N.Y.S.3d 579;  People v. Miller, 147 A.D.3d 783, 783–784, 45 N.Y.S.3d 809).

BALKIN, J.P., SGROI, MALTESE and CHRISTOPHER, JJ., concur.