People v. Rivera

203 A.D.2d 393, 612 N.Y.S.2d 904

Opinion

—Motion by the appellant for reargument of an appeal from a sentence of the Supreme Court, Queens County, rendered September 3, 1992, which was determined by decision and order of this Court dated January 24, 1994.

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is,

Ordered that the motion is granted, and, upon reargument, the decision and order of this Court dated January 24, 1994, which determined the appeal, is recalled and vacated, and the following decision and order is substituted therefor:

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Linakis, J.), imposed September 3, 1992, upon his conviction of attempted burglary in the second degree, the sentence being an indeterminate term of 2Vs to 7 years imprisonment.

Ordered that the sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for resentencing.

The People concede that "the defendant * * * was deprived of his constitutional right to have counsel present at sentencing”. Based on this concession, we reverse the sentence imposed and remit the matter to the Supreme Court, Queens County, for resentencing. In light of our determination, we need not address the defendant’s additional argument that the sentence imposed was excessive. Mangano, P. J., Bracken, Miller, O’Brien and Pizzuto, JJ., concur.