People v. Adams

214 A.D.2d 1035, 627 N.Y.S.2d 597, 1995 N.Y. App. Div. LEXIS 6825

Opinion

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Niagara County Court for resentencing in accordance with the following Memorandum: Defendant pleaded guilty on April 18, 1991, to one count of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06) and one count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) in full satisfaction of two indictments charging defendant with multiple drug-related offenses. County Court advised defendant that, if the presentence investigation indicated that he should be sentenced to State prison, the court would permit defendant to withdraw his plea. Defendant thereafter received the promised sentence of six months in the county jail and a term of probation. When defendant was sentenced, the court told him, "[N]ow if [you violate the conditions of probation] as far as I’m concerned you violated, you go to state prison. You go to Attica. You go to a real jail. Understand me?” Defendant replied, "Yes, sir.” Thereafter, a declaration of delinquency was issued against defendant on February 23, 1994. After a hearing, the court found defendant in violation of the terms of his probation and sentenced him to a term of imprisonment of 2 to 6 years. The contention of defendant that the sentence violated the terms of his original plea bargain is without merit.

The People concede that the court erred in sentencing defendant without obtaining an updated presentence investigation report (see, People v Bolten, 203 AD2d 472, 473). We, therefore, modify the judgment on appeal by vacating the sentence, and we remit the matter to Niagara County Court for resentencing.

In light of our determination, we do not reach defendant’s contention that the sentence is unduly harsh or severe. (Appeal from Judgment of Niagara County Court, Hannigan, J.— Violation of Probation.) Present—Lawton, J. P., Fallon, Wesley, Davis and Boehm, JJ.