People v. Eubanks

Appellate Division of the Supreme Court of New York

People v. Eubanks

8 A.D.3d 1042, 778 N.Y.S.2d 366, 2004 N.Y. App. Div. LEXIS 8248

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 2004

StatusPublished

This text of 8 A.D.3d 1042 (People v. Eubanks) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Eubanks, 8 A.D.3d 1042, 778 N.Y.S.2d 366, 2004 N.Y. App. Div. LEXIS 8248 (N.Y. Ct. App. 2004).

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Opinion

[1043]*1043Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered May 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing.

Memorandum: Defendant contends that County Court erred in sentencing him upon a felony conviction without ordering a presentence investigation (see CPL 390.20 [1]). The People concede that the investigation and written report thereon were not waived by the parties with the consent of the court pursuant to CPL 390.20 (4) and thus that the sentence must be vacated (see People v Graci, 275 AD2d 421 [2000]). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing. Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.

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[1043]*1043Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered May 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing.

Memorandum: Defendant contends that County Court erred in sentencing him upon a felony conviction without ordering a presentence investigation (see CPL 390.20 [1]). The People concede that the investigation and written report thereon were not waived by the parties with the consent of the court pursuant to CPL 390.20 (4) and thus that the sentence must be vacated (see People v Graci, 275 AD2d 421 [2000]). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing. Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.

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Bluebook (online)

8 A.D.3d 1042, 778 N.Y.S.2d 366, 2004 N.Y. App. Div. LEXIS 8248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-eubanks-nyappdiv-2004.

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