THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously vacated on the law, and the matter is remitted to Ontario County Court for further proceedings on the indictment.

Memorandum:  Defendant appeals from a judgment imposing a term of imprisonment upon the determination of County Court that he violated the terms and conditions of a conditional discharge that had been imposed upon his purported conviction of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[1] ) upon his plea of guilty.  The People correctly concede that the parties and the court mistakenly believed that defendant had entered a plea of guilty at a prior appearance, when in fact, no plea proceeding had taken place.  Inasmuch as there is no conviction (see generally CPL 1.20[13] ), we conclude that the subsequent sentence imposing a conditional discharge, the determination on the declaration of delinquency, and the imposition of a term of imprisonment are void (see generally CPL 1.20[15] ).  We therefore vacate the judgment and remit the matter to County Court for further proceedings on the indictment (see generally People v. Tyrell, 22 NY3d 359, 366).

Frances E. Cafarell

Clerk of the Court