The Fourth Department, over a two-justice dissent, determined defendant’s waiver of appeal was invalid and defendant should have been accorded youthful offender status. The appeal waiver, the court noted, may have been valid for another defendant, but this defendant’s mental illness, which was evident in the appeal-waiver colloquy, indicated defendant did not understand the waiver. Defendant was between the ages of 16 and 19 when he committed the burglary, he had no prior contact with the criminal justice system, and reports indicated the criminal behavior was an aberration caused by defendant’s mental illness and inappropriate treatment:
In view of defendant’s particular circumstances, i.e., his youth, inexperience, and history of mental illness, along with his statements during the plea proceeding, we conclude that defendant’s understanding of the waiver of the right to appeal is not evident on the face of the record, and that the waiver is invalid. In reaching that conclusion, we note that the same oral colloquy may have been adequate in other circumstances for a defendant of a different “age, experience and background” … . “[T]he same or similar oral colloquy . . . can produce an appeal waiver that is valid as to one defendant and invalid as to another defendant” … . Here, however, we “cannot be certain that . . . defendant comprehended the nature of the waiver of appellate rights” … . Review of defendant’s challenge to the denial of his application for youthful offender status is therefore not foreclosed by the waiver of the right to appeal.
We agree with defendant’s contention in both appeals that he should be afforded youthful offender status. It is undisputed that defendant, who was between the ages of 16 and 19 when the crimes were committed, is eligible for youthful offender treatment under CPL 720.10 (1) and (2) … . In determining whether to afford such treatment to a defendant, a court must consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . People v Thomas R.O., 2016 NY Slip Op 01086, 4th Dept 2-11-16