People v. Fuentes

43 A.D.2d 536, 349 N.Y.S.2d 681, 1973 N.Y. App. Div. LEXIS 3107

Opinion

Judgment, Supreme Court, Bronx County, rendered April 17, 1972,- convicting the defendant upon a plea of guilty of the crime of attempt to commit the crime of possession of a weapon as a felony and criminal possession of a dangerous drug in the sixth degree and sentencing the defendant to two consecutive one-year terms, unanimously reversed, on the law, the sentence vacated and the case remanded for resentenee. Appeal from the judment, Supreme Court, Bronx County, entered November 27, 1972, which dismissed relator’s application for a writ of habeas corpus, unanimously dismissed as academic. The record indicates that at the time of sentencing, the court failed to comply with the mandatory provisions of CPL 380.50 in not affording defendant the right to make a statement personally in his own behalf. This failure constitutes error {People v. Nagi, 42 A D 2d 683; People v. Chapman, 42 A D 2d 680; People v. Lucky, 41 A D 2d 1023; People v. Brown, 41 A D 2d 850; People v. Rizzo, 41 A D 2d 691; People v. Herndon, 41 A D 2d 698; People v. Gilliam, 40 A D 2d 1036; People v. Barnett, 37 A D 2d 1027; People v. Moore, 36 A D 2d 866). Accordingly, remand for resentencing is mandated. Concur — Murphy, Steuer and Tilzer, JJ.; Markewich, J. P., and Lane, J., concur in the following memorandum by Lane, J.: We concur with the result reached by the majority, but we would also reverse on the ground that imposition of sentence must conform to subdivision 3 of section 70.25 of the Penal Law. In the case at bar, the defendant was arrested on December 18, 1971 in possession of a loaded weapon and a quantity of narcotics. The record shows that while there were two crimes committed, they were part of “a single incident or transaction” (cf. People v. Lopez, 35 A D 2d 695, affd. 28 N Y 2d 148). Accordingly, resentence is mandated for failure to comply with both CPL 380.50 and subdivision 3 of section 70.25 of the Penal Law,