| People v Joshua B. |
| 2015 NY Slip Op 01811 |
| Decided on March 4, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
THOMAS A. DICKERSON
ROBERT J. MILLER, JJ.
2014-05006
(Ind. No. 1791/12)
v
Joshua B. (Anonymous), appellant.
Seymour W. James, Jr., New York, N.Y. (Heidi Bota of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Gregory Musso on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.), rendered September 26, 2012, convicting him of burglary in the third 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.
" Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender'" (People v Rudolph, 21 NY3d 497, 501, quoting CPL 720.20[1]). Here, the record does not demonstrate that the sentencing court complied with CPL 720.20(1), as there is nothing in the record indicating that the sentencing court considered and made an actual determination as to whether the defendant should be granted youthful offender status (see People v Evans, ___ AD3d ___ [decided herewith]; People v Then, 121 AD3d 1025, 1026; People v Pacheco, 110 AD3d 927; People v Rivera, 27 AD3d 491). Therefore, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing after determining whether the defendant should be sentenced as a youthful offender. We express no opinion as to whether the Supreme Court should afford youthful offender status to the defendant.
The defendant's remaining contentions have been rendered academic in light of our determination.
BALKIN, J.P., LEVENTHAL, DICKERSON and MILLER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court