*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 121

KA 15-01148

PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER THOMAS R.O., DEFENDANT-APPELLANT.

(APPEAL NO. 2.)

FRANK POLICELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Oneida County Court (Michael L.

Dwyer, J.), rendered August 20, 2013. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.

It is hereby ORDERED that the judgment so appealed from is reversed as a matter of discretion in the interest of justice, the conviction is vacated, defendant is adjudicated a youthful offender, and the matter is remitted to Oneida County Court for sentencing.

Same memorandum as in People v Thomas R.O. ([appeal No. 1] ___ AD3d ___ [Feb. 11, 2016]).

All concur except C ARNI and D E J OSEPH , JJ., who dissent and vote to affirm in accordance with the same dissenting memorandum as in People v Thomas R.O. ([appeal No. 1] ___ AD3d ___ [Feb. 11, 2016]).

Entered: February 11, 2016 Frances E. Cafarell

Clerk of the Court