The opinion
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 *504 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.
*505 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 *506 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. 1 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 *507 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. 2 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 *508 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 *509 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 *510 that addresses youthful offender status is permissible even though the ultimate disposition remains in the hands of the sentencing court. 3
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 4 —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 *511 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.
. 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.