People v. Wiggins

17 A.D.3d 196, 792 N.Y.S.2d 328, 2005 N.Y. App. Div. LEXIS 3949

Opinion

Judgment, Supreme Court, New York County (Herbert I. Altman, J.), rendered March 26, 2002, as amended on or about March 24, 2004, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter to Supreme Court for resentencing, and otherwise affirmed.

As the People concede, after granting defendant’s CPL 440.20 motion to set aside sentence, the court should not have resentenced defendant without conducting a new sentencing proceeding at which defendant and his counsel would be present and have the opportunity to be heard (People v Green, 54 NY2d 878 [1981]).

In view of the remand for resentencing, it is unnecessary to determine whether defendant’s sentence is excessive. Concur— Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.