It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Steuben County Court for further proceedings in accordance with the following Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the second degree (Penal Law § 130.45 [1]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted rape in the second degree (§§ 110.00, 130.30 [1]). In both appeals, defendant contends, inter alia, that County Court abused its discretion in failing to adjudicate him a youthful offender. Defendant, an apparently eligible youth (see CPL 720.10 [2]), pleaded guilty pursuant to a plea bargain that provided, among other things, that he would be sentenced to concurrent terms of probation if he successfully completed a period of interim probation, but would be sentenced to a term of incarceration in state prison with a term of postrelease supervision if he did not. Defendant was released on his own recognizance, subject to the terms of the interim probation. The court subsequently determined, after a hearing, that defendant had violated the terms of his interim probation and sentenced him to a term of incarceration in state prison, without determining whether defendant would be granted youthful offender status.
“Upon conviction of an eligible youth, the court must order a [presentence] 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” (CPL 720.20 [1]). The Court of Appeals has concluded that, by the use of the word
All concur except Whalen, J., who dissents and votes to affirm in the following memorandum.