author: Smith, J. Pigott, J. (dissenting).

text:
    [995 NE2d 148, 972 NYS2d 186]
    Kevin Kowalski, Appellant, v St. Francis Hospital and Health Centers et al., Respondents, et al., Defendants.
    Argued May 28, 2013;
    decided June 26, 2013

      POINTS OF COUNSEL

      Bleakley Platt & Schmidt, White Plains (Susan E. Galvȃo, John P. Hannigan, Vincent W. Crowe and Robert D. Meade of counsel), for appellant.
    I. The medical defendants had a common-law duty to safeguard and protect appellant, measured in part by reference to his capacity to provide for his own safety. (Tagle v Jakob, 97 NY2d 165; Di Ponzio v Riordan, 89 NY2d 578; N.X. v Cabrini Med. Ctr., 97 NY2d 247; Santos v Unity Hosp., 301 NY 153; Zophy v State of New York, 27 AD2d 414, 22 NY2d 921; White v Sheehan Mem. Hosp., 119 AD2d 989; Horton v Niagara Falls Mem. Med. Ctr., 51 AD2d 152; Freeman v St. Clare’s Hosp. & Health Ctr., 156 AD2d 300; Sanchez v State of New York, 99 NY2d 247; Parvi v City of Kingston, 41 NY2d 553.) II. The Appellate Division order carves out an impermissible exception to the common-law duty of care owed by health care providers to the patients within their care. III. The cases cited by the Appellate Division only exacerbate the error and deepen the confusion regarding the proper standard of care. (Lawlor v Lenox Hill Hosp., 74 AD3d 695, 15 NY3d 713; Matter of Michael S., 166 Misc 2d 875; Mottau v State of New York, 174 Misc 2d 884.) IV The Appellate Division erred in deciding this case as a matter of law, rather than allowing a jury to consider the reasonableness of the medical defendants’ acts and omissions on the date in question. (Parvi v City of Kingston, 41 NY2d 553; Santos v Unity Hosp., 301 NY 153; N.X. v Cabrini Med. Ctr., 97 NY2d 247; Herrera v Lever, 35 Misc 3d 1209; Sanchez v State of New York, 99 NY2d 247; Haber v Cross County Hosp., 37 NY2d 888; Juseinoski v New York Hosp. Med. Ctr. of Queens, 18 AD3d 713; Kadyszewski v Ellis Hosp. Assn.,
      192 AD2d 765; Pedraza v Wyckoff Hgts. Med. Ctr., 191 Misc 2d 659.)

      The Law Offices of Steinberg, Symer & Platt, LLP, Poughkeepsie (Robert R. Haskins of counsel), for St. Francis Hospital and Health Centers, respondent.
    I. The medical defendants did not breach any duty in determining it was appropriate to discharge appellant. (N.X. v Cabrini Med. Ctr., 97 NY2d 247; Freeman v St. Clare’s Hosp. & Health Ctr., 156 AD2d 300; Zophy v State of New York, 27 AD2d 414, 22 NY2d 921; Warner v State of New York, 297 NY 395; Parvi v City of Kingston, 41 NY2d 553; Walsh v Town of Cheektowaga, 237 AD2d 947; Maldonado v County of Suffolk, 10 AD3d 387; Fagan v Atlantic Coast Line R.R. Co., 220 NY 301; Haber v Cross County Hosp., 37 NY2d 888; Juseinoski v New York Hosp. Med. Ctr. of Queens, 18 AD3d 713.) II. Appellant did not put forth sufficient evidentiary proof at the trial court level to defeat the prima facie showing of entitlement to summary judgment. (Zuckerman v City of New York, 49 NY2d 557; Romano v Stanley, 90 NY2d 444; Kornfeld v NRX Tech., 93 AD2d 772; Alvarez v Prospect Hosp., 68 NY2d 320.)

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Robert A. Spolzino, Judy C. Selmeci, Marshal S. Endick and Jeffrey B. Araten), of counsel for Chandra Chintapalli, M.D., respondent.
    I. Dr. Chintapalli had no authority under the Mental Hygiene Law to detain plaintiff since plaintiff came to the hospital voluntarily. (Lawlor v Lenox Hill Hosp., 74 AD3d 695, 15 NY3d 713; Matter of Bates v Lang, 26 AD2d 462; Randall v Bailey, 288 NY 280; Matter of Prime, 136 NY 347; Moore v Mausert, 49 NY 332; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; People ex rel. Pilgrim v Quick, 34 AD2d 562; Matter of James, 22 NY2d 545; People ex rel. Ordway v St. Saviour’s Sanitarium, 34 App Div 363; Matter of K.L., 1 NY3d 362.) II. A physician has no common-law duty or authority to detain an intoxicated person involuntarily. (Haymon v Pettit, 9 NY3d 324; Lauer v City of New York, 95 NY2d 95; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Darby v Compagnie Natl. Air France, 96 NY2d 343; Galindo v Town of Clarkstown, 2 NY3d 633; D’Amico v Christie, 71 NY2d 76; Martino v Stolzman, 18 NY3d 905; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1; Engelhart v County of Orange, 16 AD3d 369; Cartier v Long Is. Coll. Hosp., 111 AD2d 894.) III. Dr. Chintapalli had no duty to plaintiff because plaintiff had terminated the physician-patient relationship. (Garofalo v State of New York, 17 AD3d 1109, 5 NY3d 707; Zimmerly v Good Samaritan Hosp., 261 AD2d 614; Lee v City of New York, 162 AD2d 34; Blythe v City of New York, 119 AD2d 615; Heller v Peekskill Community Hosp., 198 AD2d 265; Marabello v City of New York, 99 AD2d 133; N.X. v Cabrini Med. Ctr., 97 NY2d 247; Santos v Unity Hosp., 301 NY 153; Freeman v St. Clare’s Hosp. & Health Ctr., 156 AD2d 300.) IV Dr. Chintapalli’s decision not to detain plaintiff was an exercise of professional judgment for which he cannot be liable, even if his judgment was inconsistent with hospital protocols. (Weinreb v Rice, 266 AD2d 454; Fiederlein v City of New York Health & Hosps. Corp., 80 AD2d 821; Schrempf v State of New York, 66 NY2d 289; Darren v Safier, 207 AD2d 473; Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682; Davis v Patel, 287 AD2d 479; Conrad v County of Westchester, 259 AD2d 724; Brown v Metropolitan Tr. Auth., 281 AD2d 159.)

      Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for Emergency Physician Services of New York, P.C., respondent.
    I. Plaintiff knowingly refused medical treatment and could not have been detained under New York’s statutory and constitutional provisions. (Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1; Schloendorff v Society of N.Y. Hosp., 211 NY 125; Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340; Humphrey v Cady, 405 US 504; Addington v Texas, 441 US 418; Schrempf v State of New York, 66 NY2d 289; Pingtella v Jones, 305 AD2d 38; Engelhart v County of Orange, 16 AD3d 369.) II. Plaintiff failed to demonstrate the existence of a material issue of fact requiring jury resolution. (Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1; Schloendorff v Society of N.Y. Hosp., 211 NY 125; Warner v State of New York, 297 NY 395; Siegel v City of New York, 43 AD2d 271; N.X. v Cabrini Med. Ctr., 97 NY2d 247; Santos v Unity Hosp., 301 NY 153; Zophy v State of New York, 27 AD2d 414; White v Sheehan Mem. Hosp., 119 AD2d 989.) III. To the extent that plaintiffs experts disagreed, their opinions, at best, established a difference in medical judgment that was insufficient to oppose the motion for summary judgment. (Fiederlein v City of New York Health & Hosps. Corp., 80 AD2d 821; Bell v New York City Health & Hosps. Corp., 90 AD2d 270.)
   OPINION OF THE COURT

Smith, J.

We hold that, on the facts of this case, a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving the hospital.

I

Plaintiff was brought by a friend to the emergency room of defendant St. Francis Hospital and Health Centers, seeking admission to St. Francis’s detoxification facility, known as “Turning Point.” This was at least plaintiff’s second visit to St. Francis; he had been admitted there in the previous month with suicidal thoughts and had been placed on a “one-to-one watch.” On that occasion, he improved after receiving medication and was discharged. Apparently, no one at the hospital consulted the record of plaintiff’s previous visit when he returned.

There is no evidence that plaintiff was suicidal on his later visit to St. Francis. But he showed signs of severe intoxication, including red eyes, garbled speech and a strong smell of alcohol. His blood-alcohol content was extremely high: .369%. He was, however, alert and able to walk. He was seen by an emergency room doctor, defendant Chandra Chintapalli, and was accepted to the Turning Point program.

About four hours after his arrival, plaintiff was waiting to be transported to Turning Point when he removed an IV from his arm and told a nurse he planned to go home in a taxi. She urged him to call a friend to pick him up, and he agreed. The nurse went to tell Dr. Chintapalli that plaintiff wanted to leave; when she returned, plaintiff was gone. The nurse asked Dr. Chintapalli if she should call the police. The doctor said no, but notified hospital security. Plaintiff left unescorted, and was hit by a car an hour or two later.

Plaintiff sued the hospital, Dr. Chintapalli and the doctor’s professional corporation (defendants in this opinion) for negligence and medical malpractice. Supreme Court denied defendants’ motions for summary judgment. The Appellate Division reversed and granted the motions, holding that defendants had shown prima facie “that they lacked authority to confine the plaintiff upon his departure from St. Francis” and that plaintiff had failed to contradict that showing (Kowalski v St. Francis Hosp. & Health Ctrs., 95 AD3d 834, 835 [2d Dept 2012]). We granted leave to appeal (19 NY3d 809 [2012]) and now affirm.

II

The gist of plaintiffs claim is that defendants should have prevented him from leaving the emergency room. We agree with the Appellate Division that defendants had no right, and therefore could have had no duty, to do so.

There are surely few principles more basic than that the members of a free society may, with limited exceptions, come and go as they please. Of course there are people so mentally impaired that they must be denied this right, but that category is a narrow one and does not include everyone who would be safer in a detoxification facility than on the street. Thus the common law permitted the restraint of people whose mental state might make them a danger to themselves or others only in extreme circumstances. As Judge Fuld explained in Warner v State of New York (297 NY 395, 401 [1948]):

“The common law recognized the power to restrain, summarily and without court process, an insane person who was dangerous at the moment. The power was to be exercised, however, only when necessary to prevent the party from doing some immediate injury either to himself or others and only when the urgency of the case demands immediate intervention. On the other hand, insane persons who were not dangerous were not liable to be thus arrested or restrained . . . Emmerich v. Thorley [(35 App Div 452 [1st Dept 1898])] ... is a striking illustration of the sort of case wherein summary restraint is justifiable. There, the plaintiff who had been summarily and forcibly restrained was actually in the act of throwing herself out of a window to escape fancied pursuers” (internal quotation marks and citations omitted).

Today, Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain “a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol... in his or her body” (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person “who comes voluntarily or is brought without his or her objection” to a hospital or other treatment facility (§ 22.09 [d]) and one “who is brought with his or her objection” (§ 22.09 [e]). In the latter case, the person “may be retained for emergency treatment” if he or she is examined by a doctor and found to be incapacitated to such a degree that “there is a likelihood to result in harm to the person or others” (§ 22.09 [e]); a “likelihood to result in harm” to oneself must be “manifested by threats of or attempts at suicide or serious bodily harm or other conduct” that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category—people who, like plaintiff, come to the hospital voluntarily—the Mental Hygiene Law makes no provision for involuntary retention.

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case. Plaintiff argues that a duty to restrain him flowed from the hospital’s and the doctor’s common-law duty of care, but there can be no duty to do that which the law forbids. To restrain plaintiff on these facts would have exposed defendants to liability for false imprisonment.

Plaintiff points to two specific features of this case which show, he says, that defendants were at fault: the failure to consult the record of plaintiffs previous hospitalization, when he was contemplating suicide, and Dr. Chintapalli’s rejection of a nurse’s suggestion to call the police. Neither fact changes the result. A patient cannot be confined simply because he was having suicidal thoughts a month ago. And the doctor had no duty to call the police; the police could not, on the facts known to Dr. Chintapalli when plaintiff left the hospital, have forced plaintiff to return.

The dissent advances two theories. First, it says that the Mental Hygiene Law is not “implicated” here (dissenting op at 487)—but Mental Hygiene Law § 22.09 (c), (d) and (e) apply on their face to a “general hospital.” Secondly, the dissent argues, not that defendants could or should have prevented plaintiff from leaving the hospital, but that defendants failed “to follow their own protocols” in other ways (dissenting op at 487). Nothing in this record, however, supports an inference that there was any causal connection between any of the alleged departures from protocol that the dissent relies on and plaintiffs injury. This case is about whether defendants had a duty to prevent plaintiff from leaving the hospital, and nothing else.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Pigott, J. (dissenting).

I would reverse on two grounds: the first based upon the Appellate Division’s erroneous holding that the Mental Hygiene Law is implicated here, and the second based upon what I view as defendants’ common-law duty to plaintiff.

With respect to the Appellate Division’s analysis, it is clear that article 22 of the Mental Hygiene Law does not apply. Article 22, entitled “Chemical Dependence Programs, Treatment Facilities, and Services,” is primarily addressed to an entirely different category of medical providers, not general hospitals, with a limited exception for emergency treatment (see Mental Hygiene Law § 22.09 [c], [d], [e]). The Appellate Division held that a person, “brought voluntarily to a medical facility for treatment of alcoholism[,] cannot be involuntarily confined solely for that treatment” (95 AD3d 834 [2d Dept 2012]). But article 22 does not, as the Appellate Division seems to imply, displace a medical provider’s common-law duty relative to patients, incapacitated by alcohol or any other affliction, who voluntarily present themselves for emergency treatment. To hold otherwise distorts both article 22 and the common-law duty of health care providers.

Once the Mental Hygiene Law is removed from the equation, the issue then becomes: what is the common-law duty of defendants to a concededly intoxicated patient once he presents himself to the hospital and comes under the care of a physician? Defendants’ argument in support of their motion for summary judgment is straightforward—plaintiff did not meet the legal standard for involuntary confinement, i.e., he was not an imminent danger to himself or others, and, because he was not such a danger, they owed him no duty. He was free to leave and there was nothing defendants could have done to legally stop him.

But this case has nothing to do with whether “free” individuals may “come and go as they please” (majority op at 485), and has everything to do with defendants’ duty to a patient, like plaintiff, who presents to the emergency department in an intoxicated state. Because plaintiff submitted evidence through expert affidavits establishing that defendants failed to follow their own protocols in treating him, defendants’ motion for summary judgment should have been denied.

Defendants supported their position with three experts, but the opinions of only two of them—a psychiatrist and an RN with a doctorate in the field of adult nursing practice—merit discussion here. The psychiatrist opined that the “undisputed facts demonstrate that [plaintiff] was not suicidal, and had not manifested any signs of [being an] imminent [danger] to himself [and] others.” The RN, who submitted an affidavit on behalf of St. Francis, claimed that there was nothing the nursing staff could have done to stop plaintiff because it had no authority to restrain plaintiff, particularly where he had not expressed any desire to harm anyone.

However, these opinions, drawn from the Mental Hygiene Law, are tangential to the basic question of the defendants’ common-law duty to a patient such as this plaintiff, who presented with a fractured nose and in an inebriated state. Underscoring St. Francis’s duty in this regard is the fact that, just one month prior to this admission, plaintiff presented to the same emergency department in an intoxicated and suicidal state. In response to that, St. Francis placed plaintiff on a “one-to-one watch,” consistent with its written policy, until he was discharged to his family two days later. The majority acknowledges that St. Francis’s staff in all likelihood failed to consult the medical records concerning plaintiffs recent visit (majority op at 484).

In opposition to the motion, plaintiff presented affidavits from his own experts—a board-certified emergency medicine physician and an expert in psychiatry and neurology. These medical experts found fault with plaintiffs care and treatment by defendants, beginning with St. Francis’s failure to abide by its own policies for a patient, such as plaintiff, with a history of psychiatric hospitalization, suicidal ideations and heavy drinking, all of which indicated that one-to-one surveillance may be needed. They also opined that, based on plaintiffs behavior, defendant Chintapalli should have assigned a one-to-one watch. These experts explained that the decision by St. Francis and Chintapalli not to monitor plaintiff deviated from the standard of care and violated hospital protocol. Moreover, St. Francis failed to abide by its policy that “potentially unstable patients by history will not be left unattended while in the Emergency Department” (emphasis omitted), which is clearly what occurred here. These aforementioned failures were compounded by Chintapalli’s instructions; when asked, after the patient had left against medical advice, whether the police should be called, he answered “no.”

The majority’s opinion implies that this is an “all or nothing” issue, namely, that because St. Francis had no authority to restrain plaintiff, it owed him no further duty. In my view, plaintiff, through his experts, raised a triable issue of fact with respect to the defendants’ common-law duty as outlined in the hospital’s own protocols. Whether plaintiff would prevail at trial is another question; but serious issues of fact with respect to defendants’ conduct remain, as do triable issues of fact concerning proximate cause. I would reverse the Appellate Division order, deny the defendants’ motion for summary judgment and reinstate the complaint.

Chief Judge Lippman and Judges Graffeo, Read and Rivera concur with Judge Smith; Judge Pigott dissents and votes to reverse in an opinion in which Judge Abdus-Sajlaam concurs.

Order affirmed, with costs.


source: Caselaw Access Project

author: Rivera, J.

license: Public Domain

text:
    [995 NE2d 144, 972 NYS2d 182]
    The People of the State of New York, Respondent, v Christopher Brinson, Appellant. The People of the State of New York, Respondent, v Lawrence Blankymsee, Appellant.
    Argued May 30, 2013;
    decided June 26, 2013

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant in the first above-entitled action.
    Adding a five-year term of postrelease supervision to Christopher Brinson’s determinate sentence after he had finished serving that sentence and was incarcerated only on consecutive indeterminate sentences violated double jeopardy. (United States v DiFrancesco, 449 US 117; People v Lingle, 16 NY3d 621; People v Williams, 14 NY3d 198; United States v Silvers, 90 F3d 95; People v Sparber, 10 NY3d 457; People v Ramirez, 89 NY2d 444; Earley v Murray, 451 F3d 71; People v Buss, 11 NY3d 553; Matter of State of New York v Rashid, 16 NY3d 1; People v Mills, 11 NY3d 527.)

      Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant in the second above-entitled action.
    Adding a five-year term of postrelease supervision to Lawrence Blankymsee’s two determinate sentences after he had finished serving those sentences and was incarcerated only on concurrent indeterminate sentences violated double jeopardy. (United States v DiFrancesco, 449 US 117; People v Lingle, 16 NY3d 621; People v Williams, 14 NY3d 198; United States v Silvers, 90 F3d 95; People v Ramirez, 89 NY2d 444; People v Sparber, 10 NY3d 457; Earley v Murray, 451 F3d 71; People v Buss, 11 NY3d 553; Matter of State of New York v Rashid, 16 NY3d 1; People v Mills, 11 NY3d 527.)

      Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos and John M. Castellano of counsel), for respondent in the first and second above-entitled actions.
    Defendants’ resentencings did not violate double jeopardy because they had not completed their original sentences, and, under this Court’s precedent, they had no legitimate expectation of finality in those illegal sentences. (People v Lingle, 16 NY3d 621; People v Williams, 14 NY3d 198; People v Buss, 11 NY3d 553; People v Sparber, 10 NY3d 457; People v Velez, 19 NY3d 642; Morrissey v Brewer, 408 US 471; Gonzalez-Fuentes v Molina, 607 F3d 864; People v Gammon, 19 NY3d 893; United States v Pettus, 303 F3d 480; Missouri v Hunter, 459 US 359.)
   OPINION OF THE COURT

Rivera, J.

In these unrelated cases, each defendant claims that the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy Clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.

In both these cases, defendants were resentenced because the sentencing court failed to impose PRS as part of the original sentence (see People v Sparber, 10 NY3d 457, 469-470 [2008] [holding that a judge must pronounce a defendant’s PRS sentence in open court and that a court’s failure to impose PRS as part of the original sentence requires resentencing of the defendant to correct the error]). Defendant Christopher Brinson was arrested on December 8, 1998, and sentenced on July 14, 2000 to a determinate term of 10 years’ imprisonment for robbery in the second degree (Penal Law § 160.10 [1]), an indeterminate term of 3 to 6 years’ imprisonment for robbery in the third degree (Penal Law § 160.05), and an indeterminate term of 2 to 4 years’ imprisonment for grand larceny in the fourth degree (Penal Law § 155.30 [5]). The court ordered the indeterminate counts to run concurrent with each other but consecutive to the determinate count. On April 28, 2010, approximately 11 years and four months after his incarceration following his arrest, Supreme Court resentenced defendant, imposing upon him five years’ PRS nunc pro tunc on the determinate count.

Defendant Lawrence Blankymsee was sentenced, on May 20, 2004, as a second felony offender, to seven concurrent prison terms consisting of determinate sentences of five years on two loaded firearm possession counts (Penal Law § 265.02 [4]), indeterminate sentences of 3 to 6 years on other weapons possession counts (Penal Law § 265.02 [1]), indeterminate sentences of 8 to 16 years on two felony controlled substance possession counts (Penal Law § 220.16 [12]), and a definite sentence of one year on a misdemeanor drug possession count (Penal Law § 220.03). Six years and five months later, on October 20, 2010, Supreme Court resentenced defendant and imposed five years’ PRS on the two counts of criminal possession in the third degree involving the unlawful possession of loaded firearms, for which he had received determinate sentences.

The Appellate Division unanimously affirmed the resentences in separate appeals, concluding that defendants did not have a legitimate expectation of finality in their respective determinate sentences because they had not completed their properly aggregated sentences prior to resentencing (People v Brinson, 90 AD3d 670 [2d Dept 2011]; People v Blankymsee, 92 AD3d 890 [2d Dept 2012]). A Judge of this Court granted leave to appeal in both cases.

The Fifth Amendment’s Double Jeopardy Clause prohibits multiple punishments for the same crime (see United States v DiFrancesco, 449 US 117, 129 [1980]; People v Biggs, 1 NY3d 225, 228-229 [2003]). This prohibition “prevents a sentence from being increased once the defendant has a legitimate expectation in the finality of the sentence” (People v Williams, 14 NY3d 198, 215 [2010], citing DiFrancesco, 449 US at 135-136). However, “defendants are ‘presumed to be aware that a determinate prison sentence without a term of PRS is illegal’ ” (People v Lingle, 16 NY3d 621, 630 [2011], quoting Williams, 14 NY3d at 217), and courts have an inherent authority to correct illegal sentences (see e.g. People v Richardson, 100 NY2d 847, 852-853 [2003]).

We have held that the opportunity to correct such illegality is not without end. As we stated in Williams, “there must be a temporal limitation on a court’s ability to resentence a defendant since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts” (Williams, 14 NY3d at 217 [citation omitted]). The temporal limitation demarcation occurs once the sentence is served and the appeal is completed, or the time for such appeal has expired. In Lingle, we stated that the defendant’s “expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken” (Lingle, 16 NY3d at 630, citing Williams, 14 NY3d at 217). In that case, we rejected defendants’ argument that the completion of less than the entire “originally-imposed sentence” could be the basis for a legitimate expectation of finality (Lingle, 16 NY3d at 631).

We thus consider the issues raised in the appeals currently before us with the understanding that we must presume defendants knew that their determinate sentences were illegal, and that they knew they were subject to resentencing until such time as they completed their respective sentences. We must also presume defendants understood that their multiple sentences were subject to aggregation and/or merger under Penal Law § 70.30, and our prior case law interpreting this provision (see Lingle, 16 NY3d at 633 [“defendants are charged with knowledge of the law”]).

The central dispute in these cases is whether the defendants have a legitimate expectation of finality in the determinate sentences which are subject to PRS, given the fact that, at the time of resentencing, they had not completed, and remained incarcerated pursuant to, an aggregate sentence which reflected the time imposed for all of the convictions. Defendants state that they have an expectation of finality because at the time of resentencing they had already completed the determinate sentences for the counts subject to PRS. They contend that their multiple sentences must be measured as discrete and insular for purposes of the Double Jeopardy Clause.

The People argue that because the defendants were incarcerated and serving aggregate sentences calculated in accordance with Penal Law § 70.30 at the time of resentencing, they did not have a legitimate expectation in the finality of their sentences. The People further argue that the defendants’ multiple sentences were properly aggregated under Penal Law § 70.30, and thus are not measured as discrete sequential terms of imprisonment, but rather constitute one punishment of incarceration, with a release date calculated in accordance with section 70.30.

As relevant to these appeals, Penal Law § 70.30 establishes the methodology for calculating a defendant’s multiple terms of imprisonment, including determinate and indeterminate terms. Section 70.30 allows a court to merge concurrent sentences and add consecutive sentences (see Penal Law § 70.30 [1]; see also William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, 2011 Electronic Update, Penal Law § 70.30). In defendant Brinson’s case, his indeterminate sentences were merged with one another and added to the determinate sentence to produce an aggregate maximum term of 13 years. In defendant Blankymsee’s case, his sentences were merged so that the largest indeterminate term of 8 to 16 years controls.

Our prior analysis of section 70.30 does not support defendants’ argument that their respective sentences must be treated as separate and discrete. In People v Buss (11 NY3d 553 [2008]), we held that under Penal Law § 70.30 consecutive and concurrent sentences are merged or aggregated and thus “made into one” (id. at 557). The defendant there pleaded guilty to unrelated crimes that occurred years apart, but the Board of Examiners of Sex Offenders sought to have defendant registered under the Sex Offender Registration Act (SORA) for the first crime even though his sentence for that crime had expired before SORA became effective. We applied Penal Law § 70.30 to the question “whether a prisoner who has been given multiple sentences is subject to all his sentences for the duration of his term of imprisonment,” and answered that question in the affirmative on the basis that Penal Law § 70.30 converts multiple sentences into a “single, indeterminate sentence” (id.). We held that “for SORA purposes a prisoner serving multiple sentences is subject to all the sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence he is serving” (id. at 557-558).

Defendants argue that Buss is distinguishable because that case involved registration under SORA. However, our analysis of section 70.30 did not depend on SORA. Quite the contrary. In Buss we analyzed section 70.30 based on the language of the statute, and applied our interpretation of the requirements of section 70.30 to SORA. Nothing in the case suggests that our interpretation of section 70.30 was dependent on SORA, or limited to SORA cases.

Defendants’ reliance on Matter of State of New York v Rashid (16 NY3d 1 [2010]) in support of their argument that section 70.30 does not apply to their sentences is unavailing. In that case, we concluded that section 70.30 could not be used to bring an ineligible sex offender under the civil management provisions of Mental Hygiene Law article 10 because that article contains its own rules for determining which crimes count for eligibility under the statute. Thus, Rashid recognized that superimposing section 70.30 on the detailed legislative scheme applicable to article 10 would “distort th[e] statutory scheme” (id. at 19). There is no similar statutory scheme involved in the appeals before us, only the original sentences which were properly calculated and aggregated in accordance with section 70.30.

As we stated in Williams and Lingle, a legitimate expectation of finality turns on the completion of a sentence. Where multiple sentences are properly aggregated into a single sentence, that expectation arises upon completion of that sentence. Defendants Brinson and Blankymsee will have a legitimate expectation of finality upon completion of their respective aggregated sentences. Until such time, resentencing for purposes of correcting their illegal determinate sentences does not run afoul of the Double Jeopardy Clause and the prohibition against “multiple punishments.” The Appellate Division orders should be affirmed.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

In each case: Order affirmed.

      . The briefs on appeal appear to erroneously state that defendant was arrested in December 1999. The record indicates that the indictment was filed in January 1999 and the presentence investigation report states that the arrest occurred on the above-mentioned date.

      . The Appellate Division also concluded that resentencing did not violate defendants’ rights to due process (92 AD3d at 890; 90 AD3d at 672). On appeal, defendants’ arguments concern the Double Jeopardy Clause, but even construing defendants’ appeals to include separate due process arguments, we find them to be without merit.


author: Smith, J. Graffeo, J. (concurring). Read, J. (dissenting).

text:
    [997 NE2d 457, 974 NYS2d 885]
    The People of the State of New York, Respondent, v Reece Rudolph, Appellant.
    Argued May 29, 2013;
    decided June 27, 2013

      POINTS OF COUNSEL

      Jack H. Weiner, Chatham, for appellant.
    The sentence was improperly imposed without considering Reece Rudolph for youthful offender status and should be vacated and the case remanded for resentencing consistent with the provisions of CPL 710.20, with a direction that appellant Rudolph receive “youthful offender” treatment and full credit for time already served. (People v Drayton, 39 NY2d 580; Matter of Capital Newspapers Div. of Hearst Corp. v Moynihan, 71 NY2d 263; People v Barlette, 83 AD2d 695; People v Evelyn J., 11 Misc 3d 277; People v Barrow, 51 AD2d 912; People v Mendoza, 57 AD2d 846; People v Miles, 244 AD2d 433; People v McGowen, 42 NY2d 905, 42 NY2d 1015; People v Gregory, 290 AD2d 810; People v Hopper, 39 AD3d 1030.)

      Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
    I. The Appellate Division, Third Department properly found that defendant waived youthful offender treatment. (Matter of Capital Newspapers Div. of Hearst Corp. v Moynihan, 71 NY2d 263; People v Drayton, 39 NY2d 580, 39 NY2d 1058; People v McGowen, 42 NY2d 905; People v Rogers, 5 AD3d 871; People v Sharlow, 12 AD3d 724; People v McClain, 35 NY2d 483; People ex rel. Gallagher v Follette, 22 NY2d 239; People v Miles, 244 AD2d 433; People v Mendoza, 57 AD2d 846; People v Cunningham, 238 AD2d 350, 90 NY2d 857; People v Barlette, 83 AD2d 695.) II. The Appellate Division properly found that defendant’s waiver of appeal precluded his claim of ineffective assistance of counsel. (People v Hopper, 39 AD3d 1030; People v McGowen, 42 NY2d 905; People v Rogers, 5 AD3d 871, 3 NY3d 711; People v Howard, 1 AD3d 718; People v Richardson, 295 AD2d 704, 98 NY2d 709; People v Gregory, 290 AD2d 810, 98 NY2d 675; People v Barrow, 51 AD2d 912; People v Johnson, 54 AD3d 1133; People v Parara, 46 AD3d 936; People v Robinson, 42 AD3d 581.)
   OPINION OF THE COURT

Smith, J.

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 NY2d 905 [1977]).

I

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 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 AD3d 1492, 1493 [3d Dept 2011]). A Judge of this Court granted leave to appeal (19 NY3d 977 [2012]) and we now reverse.

II

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 NY2d at 906). 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 [1] [b]). For all other eligible defendants, whether to grant youthful offender status lies in the discretion of the sentencing court (CPL 720.20 [1] [a]).

If youthful offender status is granted, the conviction is “deemed vacated and replaced by a youthful offender finding” (CPL 720.20 [3]). 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 [1] [a]; [3]; Penal Law §§ 60.02 [2]; 70.00 [2] [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 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 not make this decision lightly. We agree with our dissenting colleagues that the claims of stare decisis are weighty, particularly when the issue is one of statutory interpretation. We have, however, overruled cases interpreting statutes more frequently than the dissenters seem to believe (see dissenting op at 512). On this occasion, as on a number of others, we find the reasons for adopting what we think the correct interpretation of the statute to be more compelling than the reasons for adhering to a mistaken one.

We have tried to foresee any harmful consequences our departure from precedent may have. Unquestionably, there is some risk that prosecutors will be more reluctant to offer plea bargains if they cannot foreclose the possibility of youthful offender treatment. But we think this will not happen often, since prosecutors remain free to oppose such treatment and to make the court aware of reasons that might make it inappropriate in a particular case. In the unusual situation where a prosecutor is unwilling to take the chance that a judge will disagree with his or her recommendation, that prosecutor may bargain for the right to withdraw consent to the plea agreement if youthful offender treatment is granted.

We have also considered the possibility that our holding will permit collateral attacks on sentences that have already become final. In view of the factors that determine the retroactivity of judicial decisions (see People v Pepper, 53 NY2d 213 [1981]), we are satisfied that there is no reason why the overruling of McGowen should have any application to cases where the appellate process has been completed. We base today’s holding in part on our conclusion that its impact will be limited to cases still on direct review.

Finally, our decision today should not allow any defendants who have pleaded guilty to withdraw their pleas. Defendant here does not and could not seek plea withdrawal; our interpretation of CPL 720.20 (1) gives no reason to think that this defendant’s plea, or that of any other defendant similarly situated, was not knowing and voluntary. If anything, defendant pleaded guilty under the impression that the law was less favorable to him than we have held that it is—in other words, the plea offer he accepted may have been better than he thought. This is not a misapprehension that would support an application to withdraw a plea. The only remedy that any defendant is entitled to under our decision today is consideration by the sentencing court of whether youthful offender treatment is appropriate or not.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted to County Court for a determination of whether defendant is a youthful offender.

Graffeo, J. (concurring).

I agree with the majority that the holding in People v McGowen (42 NY2d 905 [1977]) that a young person who fails to request a discretionary youthful offender adjudication at sentencing is precluded from raising the court’s failure to rule on youthful offender treatment as an issue on appeal should be overruled and that this case must be reversed and remitted to the sentencing court for further proceedings. An eligible youth should not, by mere silence, be held to have waived youthful offender consideration. But I write separately because I disagree with the majority to the extent that it concludes that a defendant may not expressly waive youthful offender status as part of a negotiated plea. In my view, young defendants should be afforded the same plea bargaining rights as adult offenders.

At the time of defendant Reece Rudolph’s arrest, 40 bags of heroin were found in his truck, 330 bags of heroin were discovered in his apartment and he also possessed a quantity of cocaine and $5,500 in alleged drug proceeds. He was subsequently indicted and charged with three counts of criminal possession of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the fourth degree. A month later, pursuant to a negotiated settlement of the charges, defendant pleaded guilty to one count of criminal possession of a controlled substance in the third degree in satisfaction of the five-count indictment and other uncharged crimes. As part of the plea, defendant waived the right to appeal.

Defendant’s plea bargain included a range of permissible sentences of imprisonment that depended on the extent of defendant’s cooperation with the District Attorney’s office pursuant to a cooperation agreement. If defendant fully cooperated, the District Attorney would urge that defendant receive a three-year prison sentence with a recommendation that he participate in a Shock Incarceration program, plus two years of postrelease supervision. On the other hand, if defendant failed to comply with the cooperation agreement, he could receive a sentence of up to nine years in prison with two years of postrelease supervision. During the plea proceeding, after engaging in a brief off-the-record colloquy with defense counsel, the Assistant District Attorney stated on the record that he was not offering youthful offender status as part of the plea because of the serious nature of the offenses charged. Neither defense counsel nor defendant responded, although the court acknowledged the statement. This is the only reference to youthful offender status during judicial proceedings in this case.

Subsequently at sentencing, the Assistant District Attorney reported that defendant had not provided adequate assistance under the cooperation agreement and therefore requested that defendant receive a sentence of six years plus two years post-release supervision, which proposed term of imprisonment fell in the middle of the agreed-upon range. Defense counsel asked the court to sentence defendant at the lower end of the negotiated range and recommend his participation in the Shock Incarceration program. The court imposed a sentence of five years in prison plus two years of postrelease supervision, including a recommendation that defendant attend a substance abuse program while incarcerated. But the court declined to issue a Shock Incarceration recommendation in light of “the amount of drugs and cash and the activity that’s alleged.” Defendant’s status as an eligible youth for purposes of a discretionary youthful offender adjudication was not discussed at sentencing.

Defendant appealed, arguing that the sentencing court erred in failing to adjudicate him a youthful offender. The Appellate Division rejected this argument and affirmed the judgment of conviction, noting that defendant “waived his right to be considered for youthful offender treatment by failing to make a request for such consideration” and, as a result, “County Court was not required to address the issue at sentencing” (85 AD3d 1492, 1493 [3d Dept 2011]).

In this Court, defendant reasserts the same contentions made in the Appellate Division. Although he does not dispute the validity of his guilty plea nor proffer any basis for withdrawing it, he maintains that his sentence should be vacated based on the court’s failure to address youthful offender adjudication at sentencing. I agree with the majority that defendant is entitled to relief and that the Appellate Division order must be reversed.

Youthful offender adjudication is governed by CPL article 720. Under the New York procedure in effect since 1971, youthful offender status is resolved at sentencing, after guilt for the crime has been determined either by guilty plea or trial (see L 1971, ch 981). CPL 720.10 (1) and (2) set forth various eligibility criteria, as described by the majority. If an eligible youth is convicted in a local criminal court (meaning the conviction is for a misdemeanor), has no prior convictions and has never previously been adjudicated a youthful offender, youthful offender status is mandatory. For all other eligible youth, the determination of whether to grant such status lies in the discretion of the sentencing court. Upon conviction, CPL 720.20 (1) directs that “the court must determine whether or not the eligible youth is a youthful offender.” If youthful offender status is granted, the conviction is “deemed vacated and replaced by a youthful offender finding” (CPL 720.20 [3]) and the youth receives certain advantages, including limitations on the maximum sentence that can be imposed (CPL 720.20 [1] [a]; [3]), sealing of records and the like (CPL 720.35). Thus, if it is applicable, article 720 permits the sentencing court to vacate a criminal conviction that has been lawfully obtained—an extraordinary benefit unlike any other right granted in the Criminal Procedure Law. In adopting such a procedure, the legislature meant to ameliorate the sometimes harsh effect of trying eligible youth in adult courts—and it gave sentencing courts a critical role in dispensing justice for young offenders.

In 1977, a few years after New York adopted its post-conviction youthful offender scheme, we decided People v McGowen (42 NY2d 905 [1977]), a case in which an eligible youth pleaded guilty to assault in the first degree in satisfaction of an indictment charging him with more serious offenses and received a negotiated sentence. On appeal, defendant claimed that his sentence was defective because the court failed to expressly determine at the sentencing proceeding whether he was entitled to youthful offender status. We rejected that argument, reasoning that, “in view of the fact that the 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” (id. at 906). In essence, we applied the preservation rule to defendant’s youthful offender argument, concluding that defendant’s failure to object to the sentencing court’s omission precluded review of the issue on appeal. If we were to apply the McGowen preservation analysis in this case, we would be precluded from considering defendant’s argument that the court erred in failing to conduct a youthful offender adjudication at sentencing because defendant did not raise the issue in the sentencing court.

In the years since we decided McGowen, society’s understanding of juvenile brain function and the relationship between youth and unlawful behavior has significantly evolved. As the United States Supreme Court has recognized, “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence” (Graham v Florida, 560 US 48, 68 [2010]). As compared to adults, sociological studies establish that young people often possess “an underdeveloped sense of responsibility,” which can “result in impetuous and ill-considered actions and decisions” (Johnson v Texas, 509 US 350, 367 [1993]). These developments in the body of knowledge concerning juvenile development underscore the need for judicial procedures that are solicitous of the interests of vulnerable youth, especially under New York’s current youthful offender process in which guilt is determined in the context of a criminal justice system designed for adults. Young people who find themselves in the criminal courts are not comparable to adults in many respects—and our jurisprudence should reflect that fact.

Given the essential role that courts play in deciding whether, despite a felony conviction, a young person is entitled to discretionary youthful offender treatment, I believe that the preservation rule should not preclude an eligible youth from seeking review of a sentencing court’s failure to conduct a discretionary youthful offender adjudication. This conclusion mandates that McGowen be overruled to the extent it held otherwise. Although it is rarely necessary or appropriate to overrule a long-standing precedent, this is one of those unusual occasions when a rule deemed reasonable over 35 years ago must give way to “the lessons of experience and the force of better reasoning” (People v Bing, 76 NY2d 331, 338 [1990] [internal quotation marks and citation omitted]). McGowen’s application of the general preservation rule in this unique context falls into that category. A discretionary youthful offender adjudication—a procedure that can result in vacatur of an otherwise valid criminal conviction—is too essential to the fair administration of justice to be deemed waived by silence or acquiescence at sentencing. I therefore agree with the majority that, going forward, in cases involving eligible youth, our courts must adhere to the letter and spirit of CPL 720.20 by addressing the discretionary youthful offender issue on the record when resolving a prosecution involving an eligible youth.1 therefore concur with the majority’s conclusion that defendant’s failure to request a youthful offender adjudication at sentencing does not foreclose his challenge to the sentencing court’s failure to do so on appeal.

But I part company with the majority’s conclusion that a youthful defendant cannot waive youthful offender status as part of a negotiated plea agreement. Because it indicates waiver is not possible, the majority does not address the People’s argument that defendant agreed to forgo youthful offender status when he entered into the plea agreement and waived his right to appeal. I find it necessary to consider this question because, although I conclude that a court must engage in a youthful offender adjudication at sentencing, in my view a defendant should be able to waive the right to youthful offender status as part of a negotiated plea and, if defendant does so, the sentencing court should take that waiver into account when determining whether a youthful offender finding is warranted. In this case, however, I conclude that no such waiver occurred.

When defendant pleaded guilty and waived his right to appeal during the plea proceeding, he did not forfeit the statutory right to have the court engage in a youthful offender adjudication—an event that typically does not occur until sentencing. It is true that defendant received a sentence within the negotiated range, but at the time that he waived his right to appeal he did not know that a prerequisite to the imposition of that sentence—a youthful offender adjudication—would not occur. The People rely on the fact that the Assistant District Attorney stated at the plea proceeding that a grant of youthful offender status was not part of the plea agreement. But the People are not in control of whether a defendant will be declared a youthful offender— the sentencing court may make such an adjudication over the objection of the District Attorney (see People v Barlette, 83 AD2d 695 [3d Dept 1981]).

That being said—and contrary to the majority holding—a juvenile offender, represented by counsel, should be able to knowingly and voluntarily waive the right to a youthful offender finding as part of a negotiated plea. In this respect, youthful offender status should be treated similarly to other important statutory rights that can be waived, even though they are not subject to the preservation rule (see People v Antommarchi, 80 NY2d 247 [1992] [right to be present at certain sidebar conferences during voir dire not subject to preservation rule]; People v Vargas, 88 NY2d 363 [1996] [right to be present at certain sidebar conferences during voir dire can be waived by defendant]; see also People v Webb, 78 NY2d 335 [1991] [although a defendant need not preserve a challenge to the court’s failure to comply with jury sequestration requirements, the statutory right to jury sequestration can be waived]).

“Plea and sentence negotiation further important policy considerations, conserving law enforcement, judicial and penal resources, and permitting the parties to avoid the uncertainties inherent in the lengthy process of charge, trial, sentence and appeals, thereby ‘starting the offender on the road to possible rehabilitation’ as soon as practicable” (People v Avery, 85 NY2d 503, 506 [1995], quoting People v Selikoff, 35 NY2d 227, 233 [1974], cert denied 419 US 1122 [1975]). As the American Bar Association Task Force on Youth in the Criminal Justice System has concluded, young offenders should be afforded “the same right and opportunity to plead guilty ... as adult defendants” (ABA Task Force on Youth in the Criminal Justice System, Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners at 18 [2001], available at http://www. campaignforyouthjustice.org/documents/natlres/ABA%20%20Youth%20in%20the%20Criminal%20Justice%20System%20 Guidelines%20for%20Policymakers.pdf [last accessed June 19, 2013]). The majority’s rule, which apparently would preclude eligible youth from waiving a youthful offender finding as part of a negotiated plea, could place them at a significant disadvantage during plea negotiations. The consent of the District Attorney is required before a defendant may plead guilty to less than the entire indictment (CPL 220.10 [3], [4]) and discretionary youthful offender status significantly impacts the lawful sentence that may be imposed on a defendant convicted of a felony as it caps the maximum term of incarceration at four years (see CPL 720.20 [1] [a]; [3]; Penal Law § 60.02; see Penal Law § 70.00 [2] [e]). If waiver is not an option, the People are less likely to offer favorable pleas in cases where they feel strongly that youthful offender treatment is inappropriate.

To be sure, the court retains the last word on whether youthful offender status is warranted. But this is true with respect to any sentence negotiated as part of a guilty plea. Such agreements are conditional in the sense that the sentencing court must, in every case, exercise its independent discretion to impose an appropriate sentence, regardless of whether the parties have reached a sentencing bargain (People v Farrar, 52 NY2d 302 [1981] [even in instances where a defendant has entered a plea of guilty based on a negotiated plea with a promised sentence, the sentencing court may not abdicate its discretion to determine the proper sentence even if inconsistent with the parties’ agreement]).

Although inherently conditional, sentencing agreements are nonetheless important—we have described them as “an integral part of the plea bargaining process” (id. at 306)—and the parties’ compromise view of what constitutes a fair resolution of the case is usually accorded significant weight. For this reason, sentencing courts typically do not disturb the expectations of the parties in relation to sentencing agreements absent compelling circumstances—and, when they do, the aggrieved party is generally given the opportunity to move to vacate the plea (see e.g. People v Johnson, 14 NY3d 483 [2010] [where the parties agreed in the plea bargain that defendant would be adjudicated a youthful offender but the court declined to grant such status at sentencing, the court gave defendant the option of withdrawing his plea]; Farrar, 52 NY2d at 307-308 [in the event sentencing court determined that a more lenient sentence was warranted than that agreed to by the parties, the People should be given the opportunity to move to withdraw their consent to the plea]). Since a young offender—no less than any other defendant—should have the opportunity to secure the considerable benefits that a plea bargain may provide, I think it is inappropriate to take the youthful offender issue off the negotiating table, given its significant impact on the lawful sentence defendant may ultimately receive. I would hold that a plea bargain that addresses youthful offender status is permissible even though the ultimate disposition remains in the hands of the sentencing court.

I find the majority’s analysis of this issue to be puzzling. On the one hand, it asserts that youthful offender status is not waivable but, on the other, it indicates that the People can bargain for the right to withdraw their consent to the plea if the court imposes youthful offender status. How is this different from permitting a defendant to agree to a negotiated plea that does not include youthful offender status (subject, of course, to the requirement that the court make its own determination of the issue at sentencing)? If the People can scuttle the plea based on the court’s subsequent decision to grant youthful offender status, won’t the net result be the same as permitting the parties to bargain in relation to the subject? The majority’s view gives young defendants the worst of both worlds: the People can condition their consent to the plea on denial of youthful offender status but defendant cannot gain anything in exchange since he or she cannot agree to waive youthful offender status.

I would hold that it is possible for an eligible youth to knowingly and voluntarily waive youthful offender status as part of a negotiated plea agreement—but I would reject the People’s argument that such a waiver occurred in this case. Beyond their reliance on the general waiver of appeal, the People point only to the Assistant District Attorney’s statements during the plea proceeding indicating that a youthful offender finding was not part of the deal. There is no indication that, prior to the plea proceeding, the parties had discussed the inclusion of a youthful offender waiver as a component of the negotiated plea, much less that the defense had consented to a waiver. Nor did the Assistant District Attorney state that defendant had agreed to waive youthful offender status—his comments suggest only that the People would oppose such a finding. And defendant’s counsel said nothing on the topic. Notably, the sentences at the lower end of the negotiated range would have fallen under the four-year youthful offender cap, leaving the court the option of sentencing defendant within the negotiated range while at the same time adjudicating him a youthful offender.

Although we have never required rigid formalism in relation to the waiver of statutory rights (Vargas, 88 NY2d at 376; see e.g. People v Williams, 15 NY3d 739 [2010] [record as a whole demonstrated that defendant had waived Antommarchi right]), the record here fails to establish that defendant knowingly and voluntarily waived a youthful offender finding either during the plea proceeding or at sentencing. Due to the sentencing court’s failure to conduct a youthful offender adjudication, reversal is warranted and the case must be remitted to the sentencing court. I express no opinion concerning whether defendant should receive youthful offender status on remittal; such a determination continues to rest, as it always has, in the sound discretion of the sentencing court.

Read, J. (dissenting).

The majority “read[s] the legislature’s use of the word ‘must’ in [CPL 720.20 (1)] 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” (majority op at 501). But clearly, this is not the legislature’s policy choice—it’s the majority’s, made in disregard of the legislature and precedent. I respectfully dissent.

Thirty-six years ago, in People v McGowen (42 NY2d 905 [1977]), a different Court of Appeals rejected the interpretation of section 720.20 (1) that the majority now adopts—“that the [defendant’s] sentence [was] defective because the court did not expressly make a determination on the record, regarding his eligibility for youthful offender treatment, before imposing sentence” (id. at 906). That earlier Court, unlike this one, concluded that the right to a youthful offender determination was waivable, and, in fact, had been waived because McGowen (like defendant) “made no assertion at the time of sentence that he was entitled to an adjudication of his youthful offender status” (id.).

What’s changed in 36 years other than the composition of the Court of Appeals and the policy views of at least four of the judges? Nothing. Whether the 1977 Court’s or the 2013 Court’s reading of section 720.20 (1) is “right” or “more correct” or “better” may be debatable. It is not debatable, however, that what the Court has done was, until today, essentially unheard of as an institutional matter. As Judge Simons pointed out in People v Damiano (87 NY2d 477, 490 [1996, Simons, J, concurring]),

“[t]here may be cases in which the Court has overruled its own prior interpretation of a statute, but I cannot recall any. The reason why such decisions are rare is obvious. If the Court is wrong in its interpretation of a legislative enactment, the Legislature can readily correct the statute to make its meaning clear.”

We have made this same basic point many times (see e.g. People v Hobson, 39 NY2d 479, 489 [1976, Breitel, Ch. J.] [“Precedents involving statutory interpretation are entitled to great stability. After all, in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly (arrogated) legislative power. Moreover, if the precedent or precedents have ‘misinterpreted’ the legislative intention, the Legislature’s competency to correct the ‘misinterpretation’ is readily at hand” (citations omitted and emphasis added)]; People v Concepcion, 17 NY3d 192, 201 [2011] [“Legislative inaction (which just may, after all, signal satisfaction with [an existing interpretation of a statute]) is not a license for us . . . (to) refashion (a) statute’s settled meaning with the freedom we enjoy in matters of common law”]). Of course, stare decisis is not inflexible, but, in general, we have always required some evidence that “our interpretation is contrary to the legislative purpose underlying the statute, that it is unworkable or that, when properly applied, it imposes . . . hardship on litigants or the trial courts” (87 NY2d at 490).

It is not surprising, then, that I (like Judge Simons in 1996) have difficulty identifying cases where the Court “has overruled its own prior interpretation of a statute” (Damiano, 87 NY2d at 490). There have been many cases throughout the years, however, where the legislature, either disagreeing with our interpretation or seeking to correct an unintended consequence brought to its attention by one of our decisions, has amended a statute to clarify legislative intent (see e.g. the classic example of Feathers v McLucas, 15 NY2d 443 [1965] [holding that CPLR 302 provided a basis for jurisdiction only where a nondomiciliary committed a tortious act within the state], as modified by L 1966, ch 590 [expanding CPLR 302 to provide for jurisdiction over any nondomiciliary who “commits a tortious act without the state causing injury to person or property within the state”], and, more recently, Desiderio v Ochs, 100 NY2d 159 [2003] [holding that, under CPLR 5031, the jury’s award of future damages must be construed as the total amount to be paid to plaintiff over the compensation period, such that, at the end of 55 years, the plaintiff would have received $40 million, the jury’s award, in actual dollars], as modified by L 2003, ch 86 [altering CPLR 5031 to require the court to instruct the jury to specify the growth rate applicable to any award of future damages and clarifying the basis for a court’s structuring of such an award]; People v Kozlow, 8 NY3d 554, 559 [2007] [holding that “depicts” in former Penal Law § 235.22 was not intended to limit the scope of the statute “to sexual predators who use images, rather than words, to lure minors”], as modified by L 2007, ch 8 [changing “depicts” to “depicts or describes, either in words or images,” following Appellate Division’s reversal of defendant’s conviction]; Kolnacki v State of New York, 8 NY3d 277 [2007] [holding that personal injury action that failed to state the amount of monetary damages being sought was jurisdictionally defective under Court of Claims Act § 11 (b), which required that every claim state the “total sum claimed”], as modified by L 2007, ch 606 [excepting personal injury actions from the requirement to state the “total sum claimed”]; Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 504 [2007] [holding that CPLR 203 (a) (1) does not confer personal jurisdiction over a person “who sued a New York resident in a non-U.S. jurisdiction( ) and . . . whose contacts with New York stemmed from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York”], as modified by L 2008, ch 66 [enacting “Libel Terrorism Protection Act,” which clarifies when New York courts have jurisdiction to render declaratory relief with respect to defamation judgments secured in foreign jurisdictions that provide for less protection for freedom of speech and press than the United States and New York Constitutions afford]; People v Sparber, 10 NY3d 457 [2008] [holding that administrative imposition of post-release supervision did not satisfy CPL 380.30 and 380.40, which required that judges “pronounce sentence in every case where a conviction is entered,” but remitting for resentencing because postrelease supervision was mandatory in the cases at bar, and the error was essentially clerical], as modified by L 2008, ch 141 [establishing procedures for reviewing sentencing minutes and timetables for courts to schedule resentencing hearings where postrelease supervision periods were not properly imposed]; People v Kent, 19 NY3d 290 [2012] [holding that merely “accessing and displaying” images of child pornography did not constitute knowing possession under the Penal Law, even where images were automatically embedded in the computer], as modified by L 2012, ch 456 [adding “or knowingly accesses with intent to view” to Penal Law § 263.16]). Tellingly, the legislature never chose to amend section 720.20 (1) to mandate, contrary to our holding in McGowen, “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” (majority op at 501).

In addition to the jurisprudential and reputational considerations that properly discourage an appellate court from revising its prior statutory interpretations, there are inevitably practical concerns whenever any precedent is overruled. And those concerns multiply with the precedent’s age and the frequency of its application. The majority highlights two obvious potential consequences that it claims to have weighed and discounted before deciding to cast McGowen aside. First, the majority declares itself “satisfied that there is no reason why the overruling of McGowen should have any application to cases where the appellate process has been completed” (majority op at 502). Further, the majority expresses its hope that “our decision today should not allow any defendants who have pleaded guilty to withdraw their pleas” (id.) In short, the majority seems to have fallen prey to the common human tendency to see the wish as father to the thought. Apparently, the Court of Appeals, circa 2013, expects a future Court of Appeals to give more deference to its aspirational dicta than it was willing to afford McGowen’s precedent.

Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur with Judge Smith; Judge Graffeo concurs in result in an opinion; Judge Read dissents in an opinion in which Judge Pigott concurs.

Order reversed and case remitted to County Court, Warren County, for further proceedings in accordance with the opinion herein.

        See e.g. People v Reome, 15 NY3d 188 (2010), overruling People v Hudson, 51 NY2d 233 (1980); Matter of Hyde, 15 NY3d 179 (2010), overruling Matter of Dillon, 28 NY2d 597 (1971); People v Feingold, 7 NY3d 288 (2006), overruling People v Register, 60 NY2d 270 (1983); Lusenskas v Axelrod, 81 NY2d 300 (1993), overruling Brown v Poritzky, 30 NY2d 289 (1972); People v Levy, 15 NY2d 159 (1965), overruling People v Florio, 301 NY 46 (1950).

      . The youthful offender issue was not the only argument addressed by the Court in McGowen-, under the majority analysis as well as my rationale, we overrule only that part of the decision discussing youthful offender adjudication, leaving the remainder of the decision undisturbed.

      . I am also in agreement that our decision to change course should neither result in the imposition of a significant administrative burden on the courts nor disrupt the finality of criminal judgments. Since we have established a new rule relating to a statutory right that is unrelated to the factual determination of guilt, and there has been substantial reliance on the long-standing precedent we now overrule, our decisions militate against giving this decision retroactive effect (see People v Mitchell, 80 NY2d 519 [1992]; People v Pepper, 53 NY2d 213 [1981], cert denied 454 US 967 [1981]).

      . This conclusion appears to be consistent with existing plea bargaining practices as a review of New York cases reveals many in which youthful offender status was incorporated in a negotiated plea, including at least one decision from this Court (see Johnson, 14 NY3d 483).

      . Of course, there is a significant difference between an agreement that defendant should not receive discretionary youthful offender status—and an agreement that the court will not undertake a discretionary youthful offender adjudication. In my view, the former is the proper subject of a plea agreement but the latter is not.

       The majority does not even venture a prediction about the implications of today’s decision for predicate sentencing (see People v Taylor, 86 Misc 2d 445 [1976] [in case decided before McGowen, holding that prior sentencing court’s failure to consider the defendant’s eligibility for youthful offender status required the court to sentence defendant as a first felony offender]).