People v. Davis

206 A.D.2d 832, 616 N.Y.S.2d 317

Opinion

Resentence unanimously reversed on the law, youthful offender adjudication reinstated and matter remitted to Oneida County Court for further proceedings in accordance with the following Memorandum: County Court erred in vacating the youthful offender adjudication and resentencing defendant as an adult. Defendant was originally adjudicated a youthful offender after pleading guilty to robbery in the first degree and was sentenced to 2 Vs to seven years. Where the only error concerns the legality of the sentence imposed and the court was "act[ing] only * * * to legitimate the term of sentence imposed”, the proper remedy is to impose a new sentence consistent with the youthful offender adjudication as a matter of law (People v Calderon, 79 NY2d 61, 67; see also, Matter of Kisloff v Covington, 73 NY2d 445, 452). We reinstate, therefore, the youthful offender adjudication and remit the matter to Oneida County Court for resentencing. (Appeal from Resentence of Oneida County Court, Murad, J.—Resentencing.) Present—Denman, P. J., Pine, Fallon, Callahan and Davis, JJ.