PEOPLE v. PEREIRA (2022)

Judgment of conviction (Felicia A. Mennin, J., at plea; Lisa A. Sokoloff, J., at sentencing), rendered November 24, 2015, on docket number 2015NY074218, affirmed. Judgment of conviction (Lisa A. Sokoloff, J.), rendered November 24, 2015 on docket number 2015NY075102 modified, as a matter of discretion in the interest of justice, to the extent of vacating the petit larceny conviction and substituting a conviction of criminal trespass in the second degree.

Even assuming that the sentencing court erred when it purportedly found that defendant violated the terms of a conditional discharge and/or imposed an enhanced sentence under docket number 2015NY074218, the remedy here would be to modify to the extent of vacating the sentence and remanding for resentencing. However, the only relief defendant seeks is dismissal of the accusatory instrument rather than remand for sentencing, and he expressly requests that we affirm his conviction if we do not grant a dismissal. Since it cannot be said that no penological purpose would be served by a remand, dismissal is not warranted and therefore we affirm on this basis (see People v Conceicao, 26 NY3d 375, 385 n [2015]; People v Cosme, 66 Misc 3d 152[A], 2020 NY Slip Op 50338[U] [App Term, 1st Dept 2020]).

As the People concede, defendant's conviction of petit larceny under docket number 2015NY075102 should be modified as indicated for the purpose of effectuating the plea bargain agreed upon by the parties and the court (see e.g. People v Smith, 109 AD3d 752 [2013], lv denied 22 NY3d 1159 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur