PEOPLE v. GRAY

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Alton GRAY, Appellant.

Decided: October 28, 2004

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Mathew B. Tully, Hunter, for appellant. Paul A. Clyne, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 6, 2002, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

 In July 2002, defendant pleaded guilty to a superior court information charging him with robbery in the second degree and agreed to a sentence of between 8 and 10 years' imprisonment.   County Court ultimately sentenced defendant to a term of 9 1/212 years' imprisonment.   Throughout the proceedings, County Court and defense counsel both noted that defendant was not a predicate felony offender, contrary to a statement in the presentence report.   Nonetheless, both the sentence and commitment form and the certificate of conviction state that defendant is a second felony offender.   Defendant appeals.

 We agree with defendant that this matter should be remitted to County Court for resentencing.   Where a discrepancy exists between the sentence and commitment form and the sentencing minutes, remittal is generally required to allow the trial court to resentence the defendant and to correct the discrepancy (see People v. Jenkins, 300 A.D.2d 751, 753-754, 751 N.Y.S.2d 648 [2002], lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172 [2003];  cf. People v. Davis, 256 A.D.2d 28, 683 N.Y.S.2d 1 [1998], lvs. denied. 93 N.Y.2d 872, 877, 689 N.Y.S.2d 434, 439, 711 N.E.2d 648, 653 [1999] ).   Here, both the sentence and commitment form and the certificate of conviction categorize defendant as a second felony offender, which the People concede is inaccurate.   Accordingly, we remit this matter to County Court for resentencing.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  matter remitted to the County Court of Albany County for resentencing;  and, as so modified, affirmed.

MERCURE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.

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