MINEMIER, KEVIN M., PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1453
KA 12-00210
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEVIN M. MINEMIER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
EASTON THOMPSON KASPEREK SHIFFRIN, LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered January 20, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree, assault in the first degree (two counts) and assault in the
second degree.
It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following Memorandum: Defendant
pleaded guilty to an indictment charging him with attempted murder in
the second degree (Penal Law §§ 110.00, 125.25 [1]), two counts of
assault in the first degree (§ 120.10 [1], [4]), and one count of
assault in the second degree (§ 120.05 [4]), in return for a promise
from County Court that his aggregate sentence of imprisonment would
not exceed 20 years. Defendant committed the crimes when he was 18
years old and, because he was not convicted of an armed felony (see
CPL 1.20 [41]), he was eligible for youthful offender treatment (see
CPL 720.10 [2]). The court imposed concurrent sentences, the greatest
of which is a 20-year determinate term of incarceration plus a period
of postrelease supervision, but, as the People correctly concede, the
court erred in failing to determine whether defendant should be
adjudicated a youthful offender. Thus, on defendant’s appeal from the
judgment of conviction in appeal No. 1, we hold the case, reserve
decision and remit the matter to County Court “to make and state for
the record a determination whether defendant should be granted
youthful offender status” (People v Potter, 114 AD3d 1183, 1184; see
People v Rudolph, 21 NY3d 497, 503). Defendant raises no contention
with respect to the amended sentence in appeal No. 2, which added
restitution, and we therefore dismiss the appeal therefrom.
Defendant further contends in appeal No. 1 that his sentence
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KA 12-00210
should be vacated because the court reviewed written submissions from
the victims and refused defense counsel’s request for disclosure of
those statements. Although it is clear from the record that the court
reviewed written statements that were not disclosed to defendant,
those statements are not included in the record on appeal, and we
therefore cannot address the merits of defendant’s contention. We
further direct the court, upon remittal, to make a record of what
statements it reviewed and to state its reasons for refusing to
disclose them to defendant. Finally, we reject defendant’s contention
that the court abused its discretion in allowing the parents of one of
the victims to speak at sentencing (see generally People v Hemmings, 2
NY3d 1, 6-7, rearg denied 2 NY3d 824; People v Rabsatt, 70 AD3d 863,
863, lv denied 14 NY3d 891; People v Iovinella, 295 AD2d 753, 753, lv
denied 99 NY2d 536).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court