THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KHALLIN BIGBY ALSO KNOWN AS KO ALSO KNOWN AS CALI DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Cayuga County Court for resentencing.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), defendant contends that County Court erred in sentencing him in the absence of defense counsel.   As the People correctly concede, defendant is correct.  “Sentencing is a critical stage of a criminal proceeding which implicates the right to counsel” (People v. Harris, 79 N.Y.2d 909, 910).   Although defendant failed to appear at sentencing, he did not, by virtue of his absence alone, waive his right to counsel at sentencing (see Matter of Root v. Kapelman, 67 A.D.2d 131, 137–138, lv denied 47 N.Y.2d 706;  see also People v. Aiken, 45 N.Y.2d 394, 397–398).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v. Read, 134 A.D.2d 462, 463).   In light of our decision, we do not address defendant's challenge to the severity of the sentence.

Frances E. Cafarell

Clerk of the Court