AD3 order dated June 30, 2011, affirming judgment of conviction. Decision below: 85 A.D.3d 1492, 927 N.Y.S.2d 406. Lippman, Ch.J., granted leave July 3, 2012.

ISSUES PRESENTED: (1) Whether a defendant can waive consideration for YO treatment pursuant to a negotiated plea agreement. (2) Whether counsel was ineffective for failing to pursue YO treatment. (Assigned counsel: Jack H. Weiner, 1488 State Route 203, Chatham, NY 12037.)

Issue before the Court: Whether a sentencing court must consider an eligible defendant for YO treatment, regardless of whether the defendant requests it or purports to waive such consideration?

Held: Overruling People v. McGowen, the majority, in an opinion authored by Judge Smith, holds that the statutory language of CPL 720.20(1) requires that there "must" be a YO determination in every case where the defendant is eligible, even where the defendant fails to request it or agrees to forego it as part of the plea bargain. "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." The court deemed the decision prospective only. Concurring, Judge Graffeo agreed that courts must consider YO treatment whether or not requested, but disagreed about its waiveability. A dissent by Judge Read, joined by Judge Pigott, strenuously objected to the majority overruling  McGowen, citing stare decisis.

CAL Observes: Aside from the importance of the decision going forward, it signals a majority increasingly sensitive to the issue of youth justice in the New York criminal courts (New York is one of only two states that treats 16 year olds as adults) and the stigma of criminal convictions for youths. Judge Graffeo specifically cited the evolving and now universally-accepted neuroscience regarding the underdevelopment of adolescent brains. The decision also underscores the breakdown of the Court: Judges Pigott and Read typically to the right, Judges Lippman and Rivera to the left, Judges Graffeo and Smith critical swing votes.  Where Judge Abdus-Salaam fits into this composition should become clear next term.