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The PEOPLE of the State of New York, Respondent, v. Geoffrey SMITH, Defendant–Appellant.

Decided: January 14, 2014

SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, FEINMAN, JJ. Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered July 19, 2011, convicting defendant, upon his plea of guilty, of attempted murder in the second degree, assault in the first degree (three counts), and criminal possession of a weapon in the second degree (two counts), and sentencing him to a term of eight years, followed by five years of post release supervision, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing.

Defendant negotiated a plea bargain under which the maximum sentence he would receive was ten years plus five years postrelease supervision. At sentencing, the court indicated that it had considered all information submitted to it. This included a presentence report that recommended that defendant be sentenced as promised, even though he was eligible for youthful offender treatment (CPL 720.10).

During the pendency of this appeal, the Court of Appeals determined that 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 forego it as part of a plea bargain” (People v. Rudolph, 21 NY3d 497, 501 [2013] ). Although it is clear that the court did not believe that defendant was entitled to youthful offender treatment, it did not make an explicit determination on the record when it sentenced defendant to concurrent eight year terms. Because defendant is entitled under Rudolph to an express determination by the court as to whether youthful offender treatment should be granted, his sentence must be vacated (id; see People v. Tyler, 110 AD3d 745 [2d Dept 2013] ). Since we are ordering a new sentencing proceeding, we find it unnecessary to address defendant's other arguments.