People v. Kelly

251 A.D.2d 1011, 673 N.Y.S.2d 960, 1998 N.Y. App. Div. LEXIS 7030

Opinion

—Judgment insofar as it imposes sentence unanimously reversed on the law and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: On a prior appeal, this Court concluded that County Court erred in declining to permit defendant to withdraw his guilty plea to one count of rape in the first degree. We vacated the sentence and remitted the matter for the court to provide defendant and the People the opportunity to move to vacate the plea and set aside the conviction in its entirety, or if they declined so to move, to resentence defendant as a second violent felony offender (People v Kelly, 229 AD2d 937, 938). On remittal, the court erred in denying the motion of defendant to withdraw his guilty plea. The court further erred in resentencing defendant as a second felony offender rather than as a second violent felony offender (see, CPL 400.15; see also, People v Ortiz, 227 AD2d 902). Thus, we reverse the judgment insofar as it imposes sentence and we remit the matter to Monroe County Court for further proceedings before a different Judge in compliance with our prior directive. (Appeal from Judgment of Monroe County Court, Connell, J. — Rape, 1st Degree.) Present — Green, J. P., Pine, Hayes, Callahan and Fallon,. JJ.