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SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER STATUS EVEN WHERE IT IS NOT REQUESTED OR WHERE DEFENDANT AGREES TO FORGO IT AS PART OF A PLEA BARGAIN (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant’s waiver of appeal was invalid and the sentencing court was required to consider youthful offender status, even when not requested:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a written waiver, the Supreme Court provided the defendant with no explanation as to the nature of the right to appeal and the consequences of waiving it … , nor did the court ask the defendant whether he read the waiver form before signing it … . Moreover, the court conflated the trial rights the defendant waived automatically by pleading guilty with the right to appeal … . In any event, the defendant’s contention that the court failed to consider whether to afford him youthful offender treatment would not have been barred by the defendant’s general waiver of the right to appeal … .

CPL 720.20(1) requires that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain … . People v Alleyne, 2019 NY Slip Op 00895, Second Dept 2-6-19

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES... DEFENDANT WAS NOT INFORMED OF THE POSSIBILITY OF DEPORTATION BASED UPON HIS...