The opinion
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 *512 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] *513 [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 *514 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.
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]).