People v. Bibbs

Appellate Division of the Supreme Court of New York

People v. Bibbs

17 A.D.3d 170, 792 N.Y.S.2d 327, 2005 N.Y. App. Div. LEXIS 3733

Appellate Division of the Supreme Court of the State of New York·Decided April 12, 2005·Published·Cited by 5 cases

Opinion

Judgment, Supreme Court, New York County (Herbert I. Altman, J), rendered February 3, 2003, as amended on or about March 24, 2004, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 14 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding to Supreme Court for resentencing, and otherwise affirmed.

As the People concede, after granting defendant’s CEL 440.20 motion to set aside sentence, the court should not have resentenced defendant without conducting a new sentencing proceeding at which defendant and his counsel would be present and have the opportunity to be heard (People v Green, 54 NY2d 878 [1981]).

In view of the remand for resentencing, it is unnecessary to determine whether defendant’s sentence is excessive. Concur— Tom, J.P., Marlow, Sullivan, Nardelli and Williams, JJ.

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Judgment, Supreme Court, New York County (Herbert I. Altman, J), rendered February 3, 2003, as amended on or about March 24, 2004, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 14 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding to Supreme Court for resentencing, and otherwise affirmed.

As the People concede, after granting defendant’s CEL 440.20 motion to set aside sentence, the court should not have resentenced defendant without conducting a new sentencing proceeding at which defendant and his counsel would be present and have the opportunity to be heard (People v Green, 54 NY2d 878 [1981]).

In view of the remand for resentencing, it is unnecessary to determine whether defendant’s sentence is excessive. Concur— Tom, J.P., Marlow, Sullivan, Nardelli and Williams, JJ.

People v. Bibbs, 17 A.D.3d 170, 792 N.Y.S.2d 327, 2005 N.Y. App. Div. LEXIS 3733 (N.Y. Ct. App. 2005).

Pincite

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Opinion

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