People v. Sierra

99 A.D.2d 472, 470 N.Y.S.2d 51, 1984 N.Y. App. Div. LEXIS 16652

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 1984
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Smith, J.), rendered March 2,1983, convicting him of criminal possession of a dangerous drug in the fourth degree, upon his plea of guilty in 1972, and imposing sentence. Judgment modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed. As so modified, judgment affirmed and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith, the resentencing to be conducted with all convenient speed before a Justice other than the one presiding over the original sentencing proceeding. In view of defendant’s record and the passage of over 10 years between the original date set for sentencing and the date sentence was imposed, the court’s failure to obtain an updated presentence report before imposing sentence requires vacatur of the sentence and remittal for resentencing (see CPL 390.20; People v Cruz, 89 AD2d 569). Furthermore, resentencing should be conducted with due consideration of the sentencing criteria set forth in People v Suitte (90 AD2d 80). Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.