The People v. William Middlebrooks / The People v. Fabrice Lowe

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 88
The People &c.,
Respondent,
v.
William Middlebrooks,
Appellant.
-----------------------
No. 89
The People &c.,
Respondent,
v.
Fabrice Lowe,
Appellant.

Case No. 88:
Barbara J. Davies, for appellant.
David A. Heraty, for respondent.

Case No. 89:
Philip Rothschild, for appellant.
James P. Maxwell, for respondent.

FAHEY, J.:
The Legislature has recognized that the determination
as to punishment for a youth who has committed a crime is
fundamentally different from the same determination for an adult.
On these appeals, we are asked to decide whether, when a
defendant who would otherwise be an eligible youth has been

- 1 -
 - 2 - Nos. 88 & 89

convicted of an armed felony, the court is required to make a
determination on the record as to whether one or more of the CPL
720.10 (3) factors exists and the defendant is therefore an
eligible youth. Based on a plain reading of the statute and this
Court's decision in People v Rudolph (21 NY3d 497 [2013]), we
hold that the court is required to make a determination on the
record, even if the defendant does not request it or has agreed
to forgo youthful offender treatment as part of a plea bargain.
CPL 720.10 provides that a person charged with a crime
alleged to have been committed when the individual was at least
16 and less than 19 years old is a "youth" (CPL 720.10 [1]). The
statute further provides that all "youth[s]" are eligible to be
granted youthful offender status, with certain exceptions (see
CPL 720.10 [2]). One such exception is provided for youths who
have been convicted of an armed felony (see CPL 720.10 [2] [a]
[ii]). CPL 720.10 (3) expressly provides, however, that a youth
convicted of an armed felony is eligible to be granted youthful
offender status if the court determines that there are mitigating
circumstances bearing directly upon the manner in which the crime
was committed, or, if the defendant was not the sole participant
in the crime, that the defendant's participation was relatively
minor. It is the court's responsibility to determine the
presence or absence of these CPL 720.10 (3) factors, and thus to
determine the defendant's eligibility for youthful offender
treatment, that concerns us on this appeal.

- 2 -
 - 3 - Nos. 88 & 89

I.
People v Middlebrooks
Defendant Middlebrooks was charged with four counts of
robbery for crimes he committed with one or more accomplices in
2010 when he was 18 years old. Middlebrooks pleaded guilty to
all four counts in the indictment in exchange for a sentence of
four maximum determinate terms of 15 years' imprisonment, to be
followed by five years' postrelease supervision, with all terms
to be served concurrently. At sentencing, although Middlebrooks
brought to the court's attention the fact that he was 18 years
old when he committed the crimes, neither Middlebrooks, his
counsel, nor the court mentioned youthful offender treatment.
The court sentenced Middlebrooks in accordance with the plea
agreement.
On appeal, the Appellate Division rejected
Middlebrooks's assertion that, pursuant to this Court's decision
in Rudolph, the sentencing court was required to make a youthful
offender determination on the record. The Court reasoned that
Middlebrooks was "eligible to be adjudicated a youthful offender
only if the court determined that there were mitigating
circumstances that bear directly upon the manner in which the
crimes were committed; or . . . , inasmuch as [Middlebrooks] was
not the sole participant in the crimes, that [his] participation
was relatively minor" (117 AD3d 1445, 1446 [4th Dept 2014]
[internal brackets and quotation marks omitted]). The Appellate

- 3 -
 - 4 - Nos. 88 & 89

Division held that because Middlebrooks "offered no evidence of
mitigating circumstances relating to the manner in which the
robberies were committed, nor did he specify any facts indicating
that his participation in those crimes was 'relatively minor,' "
he was not eligible for youthful offender treatment, and
therefore "the [sentencing] court did not err in failing to make
a youthful offender determination" (id. at 1446-1447). A Judge
of this Court granted Middlebrooks leave to appeal (23 NY3d 1022
[2014]).
People v Lowe
Defendant Lowe was a passenger in a vehicle that was
stopped by police after the driver turned without using a signal.
Officers observed what they believed to be heroin on the lap of
Shaquail Harris, one of the passengers in the vehicle. After
ordering the four occupants out of the vehicle, police found a
loaded gun underneath the driver's seat. Lowe had been sitting
behind the driver. Lowe was also 18 years old at the time.
Lowe was charged with criminal possession of a weapon
in the second degree. At trial, both the driver and the fourth
occupant of the vehicle testified that they had arranged to
purchase heroin from Harris that night, as they had done in the
past. Although the passenger "had seen [Lowe] around" before
that evening, he had never seen Lowe with a gun. The driver had
not met Lowe before that night. Lowe testified that the gun was
not his and that he had not seen it in the car. No fingerprints

- 4 -
 - 5 - Nos. 88 & 89

were recovered from the gun. The jury found Lowe guilty as
charged.
The presentence report prepared by the Probation
Department stated that Lowe was eligible to be adjudicated a
youthful offender and recommended that he be granted that
adjudication. At sentencing, defense counsel stated that she had
requested an adjournment to allow her time to obtain her own
presentence report, but she had been informed that the sentencing
date had been moved up by two weeks, thus preventing her from
obtaining a presentence report in time for sentencing. Defense
counsel requested that Lowe be granted youthful offender
treatment or, in the alternative, the minimum adult sentence.
Without expressly ruling on defense counsel's request for a
youthful offender adjudication,1 the court sentenced Lowe to 10
years' imprisonment and five years' postrelease supervision.
On appeal, the Appellate Division found Lowe's sentence
to be unduly harsh and severe and modified the judgment by
reducing his sentence to a determinate term of five years'
imprisonment, to be followed by five years' postrelease
supervision, and otherwise affirmed (113 AD3d 1133, 1134 [4th

1
To the extent Lowe contends that the court "implicitly"
found him to be an eligible youth and then denied his request for
youthful offender status, the record belies his contention.
There is no basis in the record to conclude that the court
considered the eligibility issue and found him to be an eligible
youth.

- 5 -
 - 6 - Nos. 88 & 89

Dept 2014]).2 The Court rejected Lowe's contention, however,
"that the court abused its discretion in refusing to grant him
youthful offender status" (id. at 1134). A Judge of this Court
granted Lowe leave to appeal (23 NY3d 1064 [2014]).
It is undisputed that both Middlebrooks and Lowe were
"youths" within the meaning of CPL 720.10 (1) and had never
before been convicted of a crime. It is further undisputed that
both Middlebrooks and Lowe would be "eligible youth[s]" -- that
is, eligible to be granted youthful offender status -- but for
the fact that their convictions to be replaced by youthful
offender adjudications were armed felonies (see CPL 720.10 [2]
[a] [ii]; CPL 1.20 [41]). The sole issue with respect to each
defendant's youthful offender status is whether the court was
required to determine on the record if he was an eligible youth
due to the existence of one or more of the factors set forth in
CPL 720.10 (3).

2
To the extent the People assert that Lowe's contention
with respect to his youthful offender status is moot in light of
the Appellate Division's reduction of Lowe's sentence, we reject
that assertion. If the court had found Lowe to be an eligible
youth and then further determined that he should be granted
youthful offender treatment, the harshest sentence the court
could have imposed was an indeterminate term of imprisonment of
1a to 4 years, a lesser sentence than the five-year determinate
term imposed by the Appellate Division (see Penal Law §§ 60.02
[2]; 70.00 [2] [e]). Furthermore, a youthful offender
adjudication has additional benefits beyond the reduced sentence
that may be imposed (see CPL 720.35; Rudolph, 21 NY3d at 500-
501).

- 6 -
 - 7 - Nos. 88 & 89

II.
Both defendants rely on our decision in Rudolph to
support their contention that the court is required to make such
a determination on the record. In Rudolph, the defendant had
been convicted of felony drug possession and did not ask the
court to adjudicate him a youthful offender. This Court noted
that CPL 720.20 (1) provides that " '[u]pon conviction of an
eligible youth, . . . the court must determine whether or not the
eligible youth is a youthful offender' " (21 NY3d at 501, quoting
CPL 720.20 [1]). We held that "the legislature's use of the word
'must' in this context . . . reflect[ed] a policy choice 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 forgo it as part of a plea bargain"
(id.). In so holding, we overruled People v McGowen (42 NY2d 905
[1977]).
Since Rudolph was decided, a split has developed within
the Appellate Division regarding whether, when a defendant who
would otherwise be an eligible youth is convicted of an armed
felony, the court is required to determine on the record whether
the factors set forth by CPL 720.10 (3) are present and the
defendant is therefore an eligible youth. The Third Department
has held that where the defendant presents no evidence of his or
her relatively minor participation or of mitigating circumstances
bearing directly on the manner in which the crime was committed,

- 7 -
 - 8 - Nos. 88 & 89

the court has no obligation to determine on the record whether
the defendant is an eligible youth (People v Woullard, 115 AD3d
1053, 1054-1055 [3d Dept 2014], lv denied 23 NY3d 1026 [2014]).
As embodied by its decision in Middlebrooks, the Fourth
Department agrees (see 117 AD3d at 1446-1447).
The First Department, however, disagrees with the post-
Rudolph approach taken by the Third and Fourth Departments. In
People v Flores (116 AD3d 644 [1st Dept 2014]), the Court wrote:
"Although defendant was convicted of an armed
felony, he still could have received a
youthful offender adjudication if the court
had made the applicable findings under CPL
720.10 (3). As the Court noted in Rudolph,
there may be 'cases in which the interests of
the community demand that youthful offender
treatment be denied, and that the young
offender be sentenced like any other
criminal; . . . but the court must make the
decision in every case' (21 NY3d at 501).
Thus, because defendant was eligible for
youthful offender consideration, if any of
the factors in CPL 720.10 (3) were found to
exist, the court had to make a determination
even though defendant did not request it. In
reaching this decision, we respectfully
disagree with the opinion of the Third
Department in People v Woullard (115 AD3d
1053 [3d Dept 2014]), which reached the
opposite conclusion" (Flores, 116 AD3d at
644-645; see People v Malcolm, 118 AD3d 447,
447 [1st Dept 2014]).
"[T]he governing rule of statutory construction is that
courts are obliged to interpret a statute to effectuate the
intent of the Legislature, and when the statutory language is
clear and unambiguous, it should be construed so as to give
effect to the plain meaning of the words used" (People v

- 8 -
 - 9 - Nos. 88 & 89

Williams, 19 NY3d 100, 103 [2012] [internal quotation marks
omitted]).
III.
CPL 720.10 contains the parameters set by the
Legislature for youthful offender eligibility. A "youth" is
defined as "a person charged with a crime alleged to have been
committed when he was at least [16] years old and less than [19]
years old or a person charged with being a juvenile offender as
defined in [CPL 1.20 (42)]" (CPL 720.10 [1]). An "eligible
youth" is "a youth who is eligible to be found a youthful
offender" (CPL 720.10 [2]). "Every youth is so eligible," with
certain exceptions set forth in CPL 720.10 (2).
That subdivision provides that those youths who have
been convicted of a class A-I or A-II felony, who have
"previously been convicted and sentenced for a felony," or who
have "previously been adjudicated a youthful offender following
conviction of a felony or [have] been adjudicated on or after
[September 1, 1978] a juvenile delinquent who committed a
designated felony act as defined in the family court act" are
ineligible for youthful offender treatment (see id.). The
Legislature provided no exceptions to ineligibility for those
categories of offenders. In other words, a defendant who commits
a class A-I or A-II felony, who has previously been convicted of
a felony, or who has been given youthful offender treatment after
a felony conviction is simply ineligible for youthful offender

- 9 -
 - 10 - Nos. 88 & 89

treatment. The court has no discretion in the matter.
CPL 720.10 (2) also includes those convicted of armed
felonies or certain sex offenses in the general class of
ineligible defendants. In contrast to the other categories of
offenders discussed above, however, the Legislature has provided
that those defendants convicted of an armed felony or an
enumerated sex offense are eligible youths under certain
circumstances. Subdivision (2) of CPL 720.10 provides that
youths convicted of an armed felony or an enumerated sex offense
are not eligible youths "except as provided in subdivision three"
(CPL 720.10 [2] [a] [ii], [iii] [emphasis added]). In turn,
subdivision (3) provides that
"[n]otwithstanding the provisions of
subdivision two, a youth who has been
convicted of an armed felony offense or of
rape in the first degree, criminal sexual act
in the first degree, or aggravated sexual
abuse is an eligible youth if the court
determines that one or more of the following
factors exist: (i) mitigating circumstances
that bear directly upon the manner in which
the crime was committed; or (ii) where the
defendant was not the sole participant in the
crime, the defendant's participation was
relatively minor although not so minor as to
constitute a defense to the prosecution" (CPL
720.10 [3] [emphasis added]).
In other words, if the court determines that one or
more of the factors provided by CPL 720.10 (3) are present, a
defendant who has been convicted of an armed felony is an
eligible youth, "[n]otwithstanding the provisions of subdivision
two." For every eligible youth that comes before it, the

- 10 -
 - 11 - Nos. 88 & 89

sentencing court "must" determine whether the eligible youth is a
youthful offender (CPL 720.20 [1]; Rudolph, 21 NY3d at 501). The
court cannot comply with the mandate of CPL 720.20 (1), which
requires the court to determine the youthful offender status of
every eligible youth, unless the court first makes the threshold
determination as to whether the defendant is, in fact, an
eligible youth.
In most instances, the court has no discretion in
determining the defendant's eligibility, and therefore, in those
instances, no determination on the record as to eligibility is
necessary. If the defendant committed the crime when he or she
was of an eligible age and none of the exceptions in CPL 720.10
(2) applies, the defendant is an eligible youth, and the court is
then required by CPL 720.20 (1) to determine whether the
defendant should be adjudicated a youthful offender. If the
defendant was not of eligible age, or was of eligible age but was
convicted of a class A-I or A-II felony, has previously been
convicted and sentenced for a felony, or has previously been
adjudicated a youthful offender following a felony conviction,
the defendant is not an eligible youth, and the court has no
discretion to determine otherwise. Where, however, the defendant
has been convicted of an armed felony or an enumerated sex
offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), in order to
fulfill its responsibility under CPL 720.20 (1) to make a
youthful offender determination for every eligible youth, the

- 11 -
 - 12 - Nos. 88 & 89

court must make the threshold determination as to whether the
defendant is an eligible youth by considering the factors set
forth in CPL 720.10 (3).
On both appeals, the People contend that the
Legislature's intent in CPL 720.10 was to make those defendants
convicted of armed felonies presumptively ineligible for youthful
offender treatment, and the court therefore is not required to
make any determination with respect to eligibility unless the
defendant affirmatively presents the court with evidence of
mitigating circumstances or minor participation. We disagree.
That interpretation of the statute fails to acknowledge the
significance of the language in CPL 720.10 (2) that those
defendants convicted of an armed felony or an enumerated sex
offense are not eligible youths "except as provided in
subdivision three" (CPL 720.10 [2] [a] [ii], [iii] [emphasis
added]).
The People's interpretation also fails to acknowledge
the Legislature's statement in subdivision three that a defendant
convicted of an armed felony "is an eligible youth,"
"[n]otwithstanding the provisions of subdivision two" if either
mitigating circumstances bearing directly upon the manner in
which the crime was committed are present or the defendant's
participation in the crime was relatively minor (CPL 720.10 [3]
[emphasis added]). In other words, where either or both of the
criteria provided in CPL 720.10 (3) are present, the defendant is

- 12 -
 - 13 - Nos. 88 & 89

an eligible youth, notwithstanding the fact that he or she was
convicted of an armed felony. As an eligible youth, such a
defendant is then entitled to a youthful offender determination
on the record pursuant to CPL 720.20 (1).
Furthermore, the People's interpretation of the statute
gives little consideration to the broader legislative purpose
behind CPL article 720. As we recognized in Rudolph,
"this right -- not a right to receive
youthful offender treatment, but to have a
court decide whether such treatment is
justified -- is different. To disable a court
from making that decision is effectively to
hold that the defendant may not have the
opportunity for a fresh start, without a
criminal record, even if the judge would
conclude that that opportunity is likely to
turn the young offender into a law-abiding,
productive member of society.
The judgment of a court as to which young
people have a real likelihood of turning
their lives around is just too valuable, both
to the offender and to the community, to be
sacrificed in plea bargaining" (21 NY3d at
501).
If the Legislature thought that those young offenders
convicted of armed felonies were not deserving under any
circumstances of the court's consideration of whether they, too,
should be granted the opportunity for a fresh start, the
Legislature would not have provided that such defendants are
eligible youths if one or more of the factors provided by CPL
720.10 (3) are present. Rather, the Legislature would have
provided that those youths convicted of armed felonies are simply
ineligible to be adjudicated youthful offenders, as the

- 13 -
 - 14 - Nos. 88 & 89

Legislature did for those convicted of class A-I or A-II felonies
(see CPL 720.10 [2] [a] [i]).
Of course, as with the determination regarding the
youthful offender adjudication, there will be many cases in which
the factors set forth in CPL 720.10 (3) are clearly absent, and,
in such cases, the court's determination that the defendant is
not an eligible youth will be a proper exercise of its discretion
(see Rudolph, 21 NY3d at 501). In those cases, after the court
determines on the record that the CPL 720.10 (3) factors do not
exist and that the defendant therefore is not an eligible youth,
no further determination is required. Nonetheless, to fulfill
its obligation to make a youthful offender determination on the
record for every eligible youth, the court must necessarily
engage in the threshold exercise of its discretion to determine
whether the defendant convicted of an armed felony or an
enumerated sex offense is an eligible youth due to the presence
of the CPL 720.10 (3) factors. In simpler terms, "the court must
make the decision in every case" (Rudolph, 21 NY3d at 501).
It must be emphasized that if the court determines that
the defendant is an eligible youth based on the presence of one
or more of the CPL 720.10 (3) factors, the court is under no
obligation to then grant the defendant a youthful offender
adjudication. The court simply must exercise its discretion a
second time to determine whether the eligible youth should be
granted youthful offender treatment pursuant to CPL 720.20 (1).

- 14 -
 - 15 - Nos. 88 & 89

On that determination, the court is not limited to the two
factors set forth in CPL 720.10 (3), which are the only factors
the court may consider when determining whether a defendant
convicted of an armed felony is an eligible youth. Rather, in
making the ultimate determination as to the youthful offender
adjudication, the court may consider the broad range of factors
pertinent to any youthful offender determination (see People v
Cruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd sub nom.
People v Dawn Maria C., 67 NY2d 625 [1986]).
Therefore, based on a plain reading of CPL 720.10 and
this Court's decision in Rudolph, we hold that when a defendant
has been convicted of an armed felony or an enumerated sex
offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the
only barrier to his or her youthful offender eligibility is that
conviction, the court is required to determine on the record
whether the defendant is an eligible youth by considering the
presence or absence of the factors set forth in CPL 720.10 (3).
The court must make such a determination on the record "even
where [the] defendant has failed to ask to be treated as a
youthful offender, or has purported to waive his or her right to
make such a request" pursuant to a plea bargain (Rudolph, 21 NY3d
at 499). If the court determines, in its discretion, that
neither of the CPL 720.10 (3) factors exist and states the
reasons for that determination on the record, no further
determination by the court is required. If, however, the court

- 15 -
 - 16 - Nos. 88 & 89

determines that one or more of the CPL 720.10 (3) factors are
present, and the defendant is therefore an eligible youth, the
court then "must determine whether or not the eligible youth is a
youthful offender" (CPL 720.20 [1]).
As we noted in Rudolph, our decision here "should not
allow any defendants who have pleaded guilty to withdraw their
pleas," inasmuch as those defendants "pleaded guilty under the
impression that the law was less favorable to [them] than we have
held that it is" (21 NY3d at 502).
Lowe's argument that his trial counsel was ineffective
is without merit, and, in light of our determination, we need not
address his remaining contention that the court abused its
discretion in denying his request for an adjournment of
sentencing.
Accordingly, in each case, the order of the Appellate
Division should be reversed, and the case remitted to County
Court for further proceedings in accordance with this opinion.

- 16 -
People v William Middlebrooks/People v Fabrice Lowe
Nos. 88 & 89

STEIN, J. (dissenting in People v Middlebrooks, concurring in
People v Lowe):
The majority holds that a sentencing court must always
determine whether a defendant who has any possibility of
establishing eligibility for youthful offender status is, in
fact, so eligible. In my view, that holding represents an
unwarranted extension of our decision in People v Rudolph (21
NY3d 497 [2013]) and a strained reading of the relevant statutory
language. I would hold that a defendant who is presumptively
ineligible for youthful offender treatment must request, and the
burden rests on such defendant to establish, that he or she is an
eligible youth, rather than obligating the courts to initiate an
inquiry into the defendant's potential eligibility.
I.
Resolution of this issue depends on the text of the
relevant statutes and on our decision in Rudolph. CPL 720.20 (1)
provides that, "[u]pon conviction of an eligible youth, . . . the
court must determine whether or not the eligible youth is a
youthful offender," by considering certain enumerated criteria.
In Rudolph, we held that the legislature's use of the word "must"
in CPL 720.20 (1) meant that a sentencing court was required to
determine whether a defendant who is eligible for youthful

- 1 -
 - 2 - Nos. 88 & 89

offender treatment should be so treated, regardless of whether
the defendant requested such treatment or even waived the right
to it (see 21 NY3d at 499, 501). The majority now takes the
legislature's use of the word "must" in CPL 720.20 (1) and
inserts it into CPL 720.10 -- a purely definitional provision --
to require courts to determine whether a defendant is an
"eligible youth," even when the defendant is specifically
excluded from that term (in the absence of proof of enumerated
circumstances). The majority does so despite the absence of the
word "must" in CPL 720.10.
It is undisputed that defendants William Middlebrooks
and Fabrice Lowe fit within the definition of "[y]outh" because
they were each 18 years old when they committed the crimes at
issue here (CPL 720.10 [1]). The statute defines the term
"[e]ligible youth" as "a youth who is eligible to be found a
youthful offender," and states that "[e]very youth is so eligible
unless" he or she falls within certain exceptions; one such
exception is where, as here, the current crime is an armed
felony, "except as provided in subdivision three" (CPL 720.10 [2]
[emphasis added]).1 Subdivision three provides that,
"[n]otwithstanding the provisions of

1
A similar exception exists where the current crime is an
enumerated sex offense (see CPL 720.10 [2] [a] [iii]). While
this decision discusses the armed felony exception -- because it
directly applies to the defendants in these cases -- the same
analysis under the statutes is applicable to a defendant
convicted of an enumerated sex offense.

- 2 -
 - 3 - Nos. 88 & 89

subdivision two, a youth who has been
convicted of an armed felony offense . . . is
an eligible youth if the court determines
that one or more of the following factors
exist: (i) mitigating circumstances that bear
directly upon the manner in which the crime
was committed; or (ii) where the defendant
was not the sole participant in the crime,
the defendant's participation was relatively
minor although not so minor as to constitute
a defense to the prosecution" (CPL 720.10 [3]
[emphasis added]).

The majority repeatedly emphasizes the language in
subdivision three that a youth convicted of an armed felony "is
an eligible youth," but ignores the import of the next word in
the statute -- "if" -- and the qualifying language that follows
(CPL 720.10 [3] [emphasis added]). "[I]f" is a qualifying word,
indicating that the defendant "is an eligible youth" only in the
event that the enumerated conditions are proven. That is,
although the statute begins with the broad premise that every
youth is eligible for youthful offender status, that premise is
clearly qualified by the words "unless," "except," and "if" (CPL
720.10 [2], [3]). Each of those qualifiers represents a step
that must be taken in the analysis before finding a youth to be
an "eligible youth." Relying on the fact that a youth may be
considered an eligible youth if the court determines that one or
more of the statutory factors exist (see CPL 720.10 [3]), the
majority incorrectly concludes that every sentencing court is
obligated to initiate an inquiry and make a determination as to
whether the defendant is an eligible youth, even where the

- 3 -
 - 4 - Nos. 88 & 89

statute presumes that he or she is not.
In Rudolph, we held that courts have an independent
duty to determine whether to bestow youthful offender status on
any defendant who is an eligible youth (see 21 NY3d at 501). In
that case, the defendant fit the definition of a presumptively
eligible youth because he did not fall within any of the
statutory exceptions. Now, however, the majority extends Rudolph
to require courts to make the more complex, threshold
determination as to whether a presumptively ineligible young
defendant could possibly qualify as an eligible youth --
regardless of whether the defendant requests youthful offender
treatment or even specifically waives it -- before proceeding
with the statutorily mandated determination of whether to grant
youthful offender status if a finding of eligibility is made. In
my view, this goes too far. While I, like the majority here and
in Rudolph, recognize the laudatory policy considerations behind
the youthful offender statute, such considerations simply cannot
justify the majority's holding here, which is based upon an
erroneous grafting of the language of CPL 720.20 (1) into the
language of CPL 720.10.2
As the majority notes, following Rudolph, the Appellate
Division Departments split on the issue currently before us. The
Third Department first addressed the issue, concluding that

2
To the contrary, the holding in Rudolph was properly
based on the language of CPL 720.20 (1).

- 4 -
 - 5 - Nos. 88 & 89

Rudolph did not apply to a defendant who "was convicted of an
armed felony and was, therefore, not eligible for youthful
offender status" (People v Woullard, 115 AD3d 1053, 1054 [3d Dept
2014], lv denied 23 NY3d 1026 [2014] [internal citations
omitted]). In a footnote, the Court "recognize[d] that an
age-eligible defendant who has been convicted of an excluded
felony may seek youthful offender treatment by demonstrating
mitigating circumstances that bear directly upon the manner in
which the crime was committed. However, where, as here, no such
showing was made, the defendant is not an eligible youth" (id. at
1054 n 2 [internal quotation marks and citations omitted]). The
First Department has disagreed with that holding, concluding
that, "regardless of whether [a] defendant was convicted of an
armed felony, he [or she] was potentially eligible for [youthful
offender] treatment under the mitigation provisions of CPL 720.20
(3), and was therefore entitled to a determination" (People v
Boria, 124 AD3d 467, 468 [1st Dept 2015] [emphasis added]; see
People v Malcolm, 118 AD3d 447, 447 [1st Dept 2014] [also stating
that the defendant was "potentially eligible"]; People v Flores,
116 AD3d 644, 644-645 [1st Dept 2014]).
However, CPL 720.20 (1) says only that the court "must"
determine whether an "eligible youth is a youthful offender." In
my view, the First Department and the majority here have erred
because a plain reading of that statute does not impose any
requirement on the court if a person is only "potentially" an

- 5 -
 - 6 - Nos. 88 & 89

eligible youth. Indeed, young defendants who fall under CPL
720.10 (2) (a) are presumptively ineligible for youthful offender
status, with only an opportunity to attempt to establish their
eligibility pursuant to CPL 720.10 (3). It is entirely
consistent with the statutory scheme to require defendants to
bear the burden of establishing that eligibility by demonstrating
the exception's statutory factors of mitigating circumstances or
minimal role in the crime (see People v Brodhead, 106 AD3d 1337,
1337 [3rd Dept 2013], lv denied 22 NY3d 1087 [2014]; see also
People v Victor J., 283 AD2d 205, 206 [1st Dept 2001], lv denied
96 NY2d 942 [2001]).
Under the rule created by the majority today, that
burden is placed on the court. While Rudolph imposed a
responsibility on sentencing courts to make a determination
regarding youthful offender status for all youths who are
presumptively eligible, the Court held that the legislature had
already placed that burden on sentencing courts through its use
of the word "must" in CPL 720.20 (1) (see Rudolph, 21 NY3d at
501). The legislature did not indicate, in CPL 720.10, that the
courts must attempt to elicit and ascertain the existence of
factors that would convert a youth who is presumptively
ineligible for youthful offender status -- because he or she
committed an armed felony -- into an eligible youth. Notably,
the phrase "if the court determines" in CPL 720.10 (3) is couched
in passive language.

- 6 -
 - 7 - Nos. 88 & 89

Not only does the majority err in holding that the
court bears the burden of determining whether a presumptively
ineligible youth is, in fact, an eligible youth, it goes even
further so as to impose that responsibility on courts regardless
of whether a defendant in that category requests -- or even
waives -- youthful offender treatment. The majority does not
explain how, or on what basis, a court would be able to make a
determination of the enumerated factors for a defendant who does
not seek such treatment. For example, in situations such as
Middlebrooks, where the defendant pleaded guilty, the record may
not contain information concerning mitigating circumstances or
the extent of the defendant's role in the crime (see CPL 720.10
[3]). Is the court then obligated on its own to hold a hearing
or beseech the possibly uninterested defendant3 to provide
additional information to enable the court to make an informed
determination as to whether a presumptively ineligible youth
qualifies as an eligible youth? It seems to me that the majority
requires too much of the already-overburdened criminal courts;
rather, the burden should be on the presumptively ineligible
defendants who desire the benefits associated with youthful
offender treatment. Although young defendants may not be versed

3
Middlebrooks, while represented by counsel, entered a
plea agreement whereby he pleaded guilty with a promised range of
sentencing that would not be available if he were adjudicated a
youthful offender. If he had obtained youthful offender status,
he would have had to forego that favorable plea agreement.

- 7 -
 - 8 - Nos. 88 & 89

in the law, counsel are available to assist them. In our system
of justice, unless the legislature has plainly laid a burden on a
particular party or on the court (see Rudolph, 21 NY3d at 501;
CPL 720.20 [1]), the burden generally rests upon the party
seeking to benefit from a particular action (see People v
McCartney, 38 NY2d 618, 622 [1976]; see also Buechel v Bain, 97
NY2d 295, 304 [2001], cert denied 535 US 1096 [2002]; Matter of
Priest v Hennessy, 51 NY2d 62, 69 [1980]). Accordingly,
defendants who are presumptively ineligible for youthful offender
treatment -- for example, because they committed an armed felony
-- should be responsible for requesting such treatment, and bear
the burden of establishing the statutory factor or factors that
would permit a court to determine that they qualify as eligible
youths. As Middlebrooks did not do so, I would affirm the
Appellate Division order in his case.
II.
In Lowe, I concur only in the result of reversal, based
on an argument not reached by the majority. Defense counsel
requested an adjournment of sentencing to compile her own
presentence report, as is permitted by statute (see CPL 390.40
[1]); she also requested consideration of Lowe for youthful
offender status. County Court refused to grant the adjournment,
without any legitimate explanation, despite having moved
sentencing up two weeks from its originally scheduled date. It
is unclear whether the defense report would have revealed

- 8 -
 - 9 - Nos. 88 & 89

information related to the factors that could have qualified Lowe
as an eligible youth (see CPL 720.10 [3]), and if counsel planned
to use the report to establish those factors or for other
sentencing-related purposes. Under these circumstances, the
court's denial of Lowe's reasonable request for an adjournment
was an abuse of discretion, requiring that his conviction be
reversed, his sentence vacated and the matter remitted for
sentencing after affording defendant an opportunity to prepare a
presentence report (see People v Foy, 32 NY2d 473, 476-477
[1973]; compare People v Becoats, 17 NY3d 643, 652-653 [2011],
cert denied ___ US ___, 132 S Ct 1970 [2012]).
* * * * * * * * * * * * * * * * *
For Case No. 88: Order reversed and case remitted to County
Court, Erie County, for further proceedings in accordance with
the opinion herein. Opinion by Judge Fahey. Chief Judge Lippman
and Judges Rivera and Abdus-Salaam concur. Judge Stein dissents
in an opinion in which Judges Read and Pigott concur.

For Case No. 89: Order reversed and case remitted to County
Court, Onondaga County, for further proceedings in accordance
with the opinion herein. Opinion by Judge Fahey. Chief Judge
Lippman and Judges Rivera and Abdus-Salaam concur. Judge Stein
concurs in result in a separate concurring opinion in which
Judges Read and Pigott concur.

Decided June 11, 2015

- 9 -