Jack H. Weiner, Chatham, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
CPL 720.20(1) says that, where a defendant is eligible to be treated as a youthful offender, the sentencing court " must" determine whether he or she is to be so treated. We hold that compliance with this statutory command cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request. In so holding, we overrule People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347 (1977).
Defendant was charged with several counts of felony drug possession, committed when he was 17 years old. He pleaded
guilty to one count of criminal possession of a controlled substance in the third degree, and orally waived his right to appeal. At the time of the plea, the prosecutor said that he " cannot extend YO as part of this offer" and that " we can eliminate YO as part of the plea bargain," because of the seriousness of the crime. Neither defendant nor the court commented on these remarks. Defendant was later sentenced to five years in prison plus two years of postrelease supervision. There was no mention at sentencing of defendant's eligibility for youthful offender status.
Defendant argued on appeal that the sentencing court erred in failing to address the question of youthful offender treatment [974 N.Y.S.2d 886] [997 N.E.2d 458] at sentencing. The Appellate Division affirmed, saying that defendant " waived his right to be considered for youthful offender treatment by failing to make a request for such consideration" ( People v. Rudolph, 85 A.D.3d 1492, 1493, 927 N.Y.S.2d 406 [3d Dept.2011] ). A Judge of this Court granted leave to appeal (19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769  ) and we now reverse.
The result reached by the Appellate Division was consistent with our decision in McGowen, which held that where a defendant " made no assertion at the time of sentence that he was entitled to an adjudication of his youthful offender status, his right thereto was waived" (42 N.Y.2d at 906, 397 N.Y.S.2d 993, 366 N.E.2d 1347). We conclude, however, that McGowen interpreted the youthful offender statute incorrectly.
Under CPL 720.10(1) and (2), a defendant is " eligible" for youthful offender status if he or she was younger than 19 at the time of the crime, unless the crime is one of several serious felonies excluded by the statute, or unless defendant has a prior felony conviction or has been adjudicated a youthful offender in a previous case. For some eligible youths convicted of misdemeanors, youthful offender treatment is mandatory ( see CPL 720.20 [b] ). For all other eligible defendants, whether to grant youthful offender status lies in the discretion of the sentencing court (CPL 720.20[a] ).
If youthful offender status is granted, the conviction is " deemed vacated and replaced by a youthful offender finding" (CPL 720.20 ). That finding brings with it certain advantages, including a four-year limit on the maximum sentence that can be imposed in a felony case (CPL 720.20[a]; ; Penal Law §§ 60.02; 70.00[e] ), the sealing of records
relating to the prosecution, and the avoidance of disabilities that might otherwise result from a conviction, including disqualification from public office and public employment (CPL 720.35).
This case depends on the interpretation of the following language in CPL 720.20(1):
" Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender." (Emphasis added.)
We read the legislature's use of the word " must" in this context to reflect a policy choice that there be 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. Ordinarily, of course, defendants may choose to give up their rights, even very important ones, and indeed are deemed to have done so if they do not timely assert them. But this right— not a right to receive youthful offender treatment, but to have a court decide whether such treatment is justified— is different. To disable a court from making that decision is effectively to hold that the defendant may not have the opportunity for a fresh start, without a criminal record, even if the judge would conclude that that opportunity is likely to turn the young offender into a law-abiding, productive member of society.
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. Of course there will be many cases in which the interests of the community demand that youthful offender treatment be [997 N.E.2d 459] [974 N.Y.S.2d 887] denied, and that the young offender be sentenced like any other criminal; indeed, there will be cases in which that is obviously the right course— but the court must make the decision in every case. Where the court's ruling is a foregone conclusion, no purpose is served by a plea bargain that takes the decision out of the court's hands.
Our decision in McGowen, we have concluded, did not give adequate weight to the importance of a judicial decision on youthful offender treatment, and therefore McGowen is overruled. We do ...