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DEFENDANT IS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, DESPITE HIS WAIVER OF APPEAL; THE ISSUE HERE WAS RAISED AFTER THE COMPLETION OF THE APPEALS PROCESS BY A MOTION FOR A WRIT OF CORAM NOBIS (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was entitled to consideration of whether he should be afforded youthful offender status in spite of defendant’s waiver of appeal:

Defendant … moved for a writ of error coram nobis contending that Supreme Court neglected to consider whether he should be afforded youthful offender treatment in connection with his conviction of assault in the first degree and that appellate counsel, in turn, was ineffective for failing to raise this issue upon the direct appeals. This Court granted defendant’s motion to the extent of reinstating defendant’s appeals … and permitting defendant to brief the youthful offender issue … .

The People concede — and we agree — that remittal is warranted. People v Rudolph (21 NY3d 497 [2013]), which was decided before defendant was sentenced and the ensuing appellate process was completed, requires the sentencing court to make “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” … . Notably, a defendant’s waiver of the right to appeal, regardless of its validity, does not foreclose review of the sentencing court’s failure to consider youthful offender status … . Where, as here, a defendant is convicted of an armed felony … , such defendant is not automatically precluded from obtaining youthful offender status; rather, “the court is [first] 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)” … . “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 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”… . People v Jones, 2023 NY Slip Op 04689, Third Dept 9-21-23

Practice Point: Whether a defendant should be afforded youthful offender status can be raised on appeal, despite the waiver of appeal. Here the issue was raised after the appeals process was complete by a motion for a writ of coram nobis alleging appellate counsel was ineffective.

 

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