PEOPLE v. GARRISON

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

The PEOPLE, etc., respondent, v. William GARRISON, appellant.

Decided: July 19, 2004

NANCY E. SMITH, J.P., SONDRA MILLER, THOMAS A. ADAMS, REINALDO E. RIVERA, and ROBERT A. LIFSON, JJ. Steven Feldman, Hauppauge, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.

Appeal by the defendant, by permission, from an order of the County Court, Orange County (De Rosa, J.), dated February 25, 2003, which denied his motion pursuant to CPL 440.20(1) to vacate an amended sentence of the same court, imposed January 7, 2002, convicting him of burglary in the second degree, upon his plea of guilty.

ORDERED that the order is reversed, on the law, the motion is granted, the amended sentence is vacated, and the matter is remitted to the County Court, Orange County, for resentencing in accordance herewith.

As the People correctly concede on this appeal, the County Court's failure to have the defendant produced at the proceeding at which it amended the sentence, after it determined that the original sentence was unlawful, violated the defendant's statutory right to be present at the time of sentence (see CPL 380.40;  People v. Horton, 296 A.D.2d 466, 467, 744 N.Y.S.2d 720;  People v. Brown, 155 A.D.2d 608, 547 N.Y.S.2d 664;  People v. Lucks, 91 A.D.2d 896, 897, 457 N.Y.S.2d 514).

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