AD3 order dated May 2, 2013, affirming judgment of conviction and denial of 440.20 motion. Decision below: 106 AD3d 1136, 963 NYS2d 783. Graffeo, J., granted leave October 3, 2013. To be argued March 23, 2015.

ISSUES PRESENTED: Whether an otherwise valid waiver of the right to appeal covers the issue of whether the sentencing judge should have granted YO treatment, where the judge erroneously believed that YO consideration was precluded by the plea agreement.

Issue before the Court:  Does a valid appeal waiver foreclose review of the sentencing court’s denial of youthful offender treatment?

 

Holding:  Although the Court had previously said that a valid appeal waiver will not foreclose revisiting of YO status where the sentencing court fails to consider YO at sentencing, see People v. Rudolph, the Court in this case held, in a memorandum decision, that appellate review is foreclosed where the sentencing court considered and rejected YO at sentencing.

 

Judge Rivera, joined by the Chief, dissented, arguing that YO is not a chip that should be permitted to be bargained away and that here, where the pre-Rudolph plea bargain effectively foreclosed the defense from presenting the full range of mitigating circumstances, the sentencing court’s consideration of YO status was improperly circumscribed.

 

CAL observes:  The parties’ briefing did not address the appeal waiver and the prosecution conceded during the oral argument that he did not believe that YO consideration was an appellate issue that could be waived. Unfortunately, the Court was then left to decide the issue of the validity of the waiver without presentation by the parties. Given the rarity of any court entering an appeal waiver correctly and the fact that here the defendant, in a pre-Rudolph world, could not have known that he was giving up the right to have the Appellate Division review the denial of YO, the implicit concession by the defense that the appeal waiver was validly entered is disturbing.

 

This is yet another case where the Court decides an issue not fully raised or briefed by the parties.  Perhaps a better practice would be to relist the case and ask for supplemental briefing and/or argument on the issue before reaching a decision.