People v. Santiago

156 A.D.2d 601, 549 N.Y.S.2d 109, 1989 N.Y. App. Div. LEXIS 15938

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered March 10, 1986, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

Under circumstances of this case, the defendant did not forfeit his right to be present at sentencing. The defendant was told on February 5, 1986, when he pleaded guilty, that sentencing would occur on March 10, 1986. His failure to appear on that date almost five weeks later did not " 'unambiguously indicate a defiance of the process as of law’ ” (People v Smith, 68 NY2d 725, 727, quoting from People v Sanchez, 65 NY2d 436, 444). Hence, the defendant’s sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing.

In remitting the matter for resentencing, we do not pass upon the propriety of the sentence imposed. Kunzeman, J. P., Rubin, Harwood and Balletta, JJ., concur.