People v. Edwards

148 A.D.2d 923, 539 N.Y.S.2d 163, 1989 N.Y. App. Div. LEXIS 2456

Opinion

Judgment unanimously affirmed. Memorandum: The sentencing court properly set aside defendant’s sentence to lifetime probation. Thereafter, defendant was resentenced to a term of three years’ to life imprisonment. The sentence first imposed was invalid as a matter of law because the prosecutor failed to recommend "either orally on the record or in a writing filed with the indictment” that defendant be sentenced to a period of probation (Penal Law § 65.00 [1] [b]; see, People v David, 65 NY2d 809; People v Eason, 40 NY2d 297). There is no merit to defendant’s argument that the required recommendation may be inferred from the plea proceeding or that the prosecutor implied the same at sentencing. (Appeal from judgment of Ontario County Court, Reed, J. — criminal sale of controlled substance, second degree.) Present — Dillon, P. J., Boomer, Green, Pine and Davis, JJ.