People v. Wyche

43 A.D.2d 836, 350 N.Y.S.2d 753, 1974 N.Y. App. Div. LEXIS 6016

Opinion

Appeal by defendant from an amended judgment of the Supreme Court, Kings County, rendered January 12, 1972, which (1) revoked the probation theretofore granted to him on November 23, 1971 upon a conviction of robbery in the second degree, on a guilty plea, and (2) resentenced him to an indeterminate prison term of five years. Amended judgment reversed as to the revocation of probation and as to the resentence, on the law, and case remanded to the Criminal Term for a hearing de nova and a new determination in accord with the reasons stated herein. At the probation revocation hearing, defendant, through his attorney, expressed the desire to make a statement. The court refused to permit him to speak, despite the clear language in GPL 410.70 (subds. 1, 2), which provide that the defendant shall have an opportunity to be heard. After revoking the sentence of probation, the court imposed a new sentence, upon finding defendant guilty of violation of probation, but failed to ask defendant, as required by CPL 380.50, whether he wished to make a statement in his own behalf. The foregoing constituted errors which require that the matter be remanded for a new revocation hearing and, if the court finds that defendant violated the terms of probation, for resentenee by reason of violation of probation. Rabin, P. J., Hopkins, Munder, Shapiro and Brennan, JJ., concur.