The defendant was convicted after a trial by jury of Manslaughter in the First Degree and was sentenced by the trial judge, the Honorable Peter J. Benitez, to a determinate term of 18 years on January 12, 2012. The Appellate Division modified the judgement of conviction, “to the extent of remanding for resentencing proceedings consistent with this decision, and otherwise affirmed.” People v. Castillo, 140 AD3d 481 (1st Dept. 2016). The Court of Appeals affirmed the defendant’s conviction, People v. Castillo, 29 NY3d 935 (2017), and the case was returned to Supreme Court, in accordance with the First Department’s decision, “for a new sentencing proceeding, at which the court shall expressly decide whether to adjudicate defendant a youthful offender.” Castillo, 140 AD3d at 484. Because Justice Benitez has retired, the case was assigned to this Court.When the defendant first appeared before this Court, the parties made conflicting claims about resentencing which raised three questions. First, in determining whether to afford the defendant youthful offender treatment, should this Court consider the defendant’s conduct since his original sentence was imposed? Second, if this Court determines that the defendant should not be afforded youthful offender treatment, should it reconsider the defendant’s sentence de novo? Third, and finally, if the Court should and does reconsider the defendant’s sentence, should the Court take into account the defendant’s conduct following his original sentence? At the Court’s request, the parties have submitted briefs on these questions. Now, for the reasons set forth below, this Court answers those questions, addressing the second and third questions before the first.The People insist that because the Appellate Division did not expressly vacate the defendant’s sentence, and because the defendant did not claim on appeal that his original sentence was excessive, if this Court does not adjudicate the defendant a youthful offender, it should not reconsider the sentence imposed by Justice Benitez. The defendant argues that the Appellate Division implicitly vacated the sentence by ordering a new sentencing proceeding, and that, should the Court deny the defendant youthful offender treatment, it is required to reconsider the sentence imposed by Justice Benitez even though he did not argue on appeal that the sentence was excessive.The defendant points to People v. Flores, 134 AD3d 425 (1st Dept. 2015) in support of his position. In Flores, the defendant was sentenced upon his plea of guilty to a determinate period of incarceration of nine years. After the Appellate Division remanded the case for a youthful offender determination, People v. Flores, 116 AD3d 644 (1st Dept. 2014), the trial court declined to treat the defendant as a youthful offender and reimposed the same sentence, stating that it had no authority to consider imposing a lesser sentence. The Appellate Division remanded the case for a second resentencing proceeding, calling the trial court’s statement “erroneous,” and ordering the trial court on remand to “determine explicitly whether defendant’s sentence should be reduced upon resentencing.” Flores, 134 AD3d at 427. However, Flores is not dispositive of the question of the relevance of the defendant’s failure to claim on appeal that his sentence was excessive, since in Flores the defendant had made that claim, and, in holding that the resentencing court could impose a lower sentence, the Appellate Division specifically noted that, “[a]s this Court did not previously consider [the excessiveness claim], the court at resentencing retained its discretion to reduce the sentence.” Id., n. 1.1Other case law makes clear, however, that although the Appellate Division did not expressly vacate the defendant’s sentence, it did so implicitly, and no less effectively, by remanding the case for a new sentencing proceeding in which the trial court should expressly determine whether to adjudicate the defendant a youthful offender. In People v. Perez, 142 AD3d 410 (1st Dept. 2016), affd. on other grounds, 2018 WL 1473607, as in this case, the defendant was convicted after trial and did not claim on appeal that his sentence was excessive. Nonetheless, the First Department observed that because the sentencing court failed to expressly determine whether the defendant, who was eligible for youthful offender treatment, should be so adjudicated, “[t]he People concede, as they must, that defendant is entitled to vacatur of his sentence for the earlier conviction and to a resentencing that considers whether he qualifies for youthful offender status.” Id. at 416. For these purposes, this case is indistinguishable from Perez and directly contradicts the People’s assertion that the Appellate Division did not intend to vacate the defendant’s sentence here because he did not make an excessive sentence claim on appeal.People v. White, 141 AD3d 463 (1st Dept. 2015), also makes clear that a court resentencing a defendant following the denial of youthful offender adjudication has discretion to reduce a sentence even when the defendant did not — and indeed, could not — claim on appeal that the previously imposed sentence was excessive. In Flores, the defendant had waived his right to appeal (including the right to appeal his sentence), but the Appellate Division determined that the waiver was invalid. In White, citing Flores, the Appellate Division found the waiver to be valid, but nonetheless stated that “the court at resentencing was not performing a ministerial function and could have imposed a lesser sentence.” 141 AD3d at 464. Thus, as the Appellate Division precedent establishes, that the defendant in this case did not claim on appeal that his sentence was excessive does not mean that, if he is not adjudicated a youthful offender, his sentence cannot be reconsidered.The People point to People v. Kuey, 83 NY2d 278 (1994), in support of their position that if this Court does not adjudicate the defendant a youthful offender, but does determine that it should reconsider his sentence, it should not take into account the defendant’s conduct after he was sentenced. In Kuey, after the defendant was convicted of Attempted Murder in the Second Degree, the Second Department remanded the case for resentencing, holding, inter alia that the trial court had erroneously treated the defendant as an armed violent felony offender. On appeal from the defendant’s resentence, the defendant complained that the court had refused to order an updated presentence report. As the People point out, in Kuey, the Court of Appeals observed that “[w]hen a defendant comes before the court for resentencing, the proper focus of the inquiry is on defendant’s record prior to the commission of the crime.” Id. at 282. The Court also noted, however, that at the time of his resentencing, the defendant “was afforded the opportunity to supply information about his subsequent conduct,” and “told the sentencing Judge that he had used his time in jail productively. ” Id. at 282-83. Significantly, in rejecting the defendant’s complaint, the Court of Appeals found that the sentencing court had not abused its discretion in declining to update the presentence report, not because the defendant’s post-sentence conduct was irrelevant to his resentencing, but because, “ [i]f the Judge thought he required additional information after hearing defendant, he could have ordered an update.” Id. at 283. Thus, Kuey acknowledged that a resentencing court can consider the defendant’s conduct after the original sentence was imposed.When the Appellate Division in Flores ordered the trial court to resentence the defendant for a second time, it stated, even more explicitly than the Court of Appeals had in Kuey, that when resentencing a defendant the court should consider such conduct. In Flores, the Appellate Division, having ordered the trial court to consider imposing a lesser sentence on the defendant than the one originally imposed, directed the court to consider not only the “mitigating factors upon which the court might have based a sentence reduction,” but also “the progress the defendant has made during his incarceration.” Flores, 134 AD3d at 427.The question remains whether in determining whether to afford the defendant youthful offender treatment, this Court should consider his conduct after the original sentence was imposed. The People argue that the Appellate Division’s second decision in Flores supports their position that post-sentence conduct is irrelevant in making such a determination, noting that in upholding the resentencing court’s denial of youthful offender status, the Appellate Division “relied solely on the circumstances of the underlying offense, specifically the extent of the defendant’s culpability and the lack of mitigating circumstances.” Peoples Presentence Memorandum, p. 3.In Flores, because the defendant had been convicted of an armed felony, he was an “eligible youth” who could receive youthful offender treatment only “if the [trial] court made the applicable findings under CPL 720.10(3).” Flores, 116 AD3d at 645. When directed by the Appellate Division to determine whether he was eligible, the trial court considered the specific factors set out in §720.10(3), which relate only to the circumstances in which the crime was committed and the defendant’s role in it.2 Having determined that he was not an “eligible youth,” the trial court had no occasion to consider whether, if he had been, it would have been proper and necessary to consider the defendant’s post-sentence conduct in determining whether to exercise its discretion to afford him youthful offender status. The Appellate Division also had no occasion to offer guidance on that question, and, when it ordered that the defendant be resentenced for the second time, simply “decline[d] to substitute [its] judgment for that of the [re]sentencing court, which determined that defendant was not an ‘eligible youth’ for a youthful offender adjudication.” Flores, 134 AD3d at 426. Thus, Flores has no bearing on the question whether this Court should consider defendant’s post-sentence conduct in determining whether to afford him youthful offender treatment.Since the People and the defendant have offered no authority on this question, and the Court has found none, it appears to be one of first impression. In this case, the defendant has not been convicted of an armed felony. Thus, he is eligible for youthful offender treatment simply because he was “charged with a crime alleged to have been committed when he was at least sixteen years old and less than nineteen years old.” C.P.L. §720.10(1). As an “eligible youth,” he may be adjudicated a youthful offender,[i]f in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years.C.P.L. §720.20(1)(a). Citing People v. Cruickshank, 105 AD2d 325 (3d Dept. 1985), affd. sub nom. People v. Dawn Maria C., 67 NY2d 625 (1986), the Court of Appeals stated that “in making the ultimate determination as to the youthful offender adjudication, the court may consider the broad range of factors pertinent to any youthful offender determination.” People v. Middlebrooks, 25 NY3d 516, 527 (2015). In Cruickshank, the Third Department observed that those factorsinclude the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life.105 AD2d at 334 (citations omitted).While many of these factors only concern a defendant’s conduct before committing the crime and in committing the crime, other factors — including the defendant’s attitude toward society, his respect for the law, his prospects for rehabilitation and hope for a future constructive life — may well change, for better or worse, during the period of time, often substantial, that the charges against him are pending, up until his conviction and sentence. Indeed, in this case that period was more than two and a half years. Such a lapse of time will often result, as it did here, in the defendant being sentenced an age at which, had the crime been committed on the date of sentence, he would no longer be eligible for youthful offender treatment. Nonetheless, there can be no question that the sentencing court should consider the defendant’s conduct after his commission of the crime and up until he is sentenced.When a defendant is resentenced several years after the original sentence was imposed there appears to be no logical reason for a different conclusion. This is particularly so, given that the time elapsed in the interim has only provided the defendant with a further opportunity to prove that he or she does — or does not — deserve the opportunity to go forward in life without a felony conviction and with a shorter sentence. Accordingly, the Court will consider the defendant’s post-sentence conduct in determining whether to adjudicate him a youthful offender. In furtherance of making that determination, the Court will adjourn the case for an updated pre-sentence report and will consider the defendant’s sentencing submission dated March 20, 2018, and any additional submissions from the parties in light of the determinations made herein.DATED: May 1, 2018
