People v Wiggins
2005 NY Slip Op 02950 [17 AD3d 196]
April 14, 2005
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 22, 2005
People v Carl Wiggins
The People of the State of New York, Respondent,
Carl Wiggins, Appellant.
Judgment, Supreme Court, New York County (Herbert I. Altman, J.), rendered March 26, 2002, as amended on or about March 24, 2004, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter to Supreme Court for resentencing, and otherwise affirmed.
As the People concede, after granting defendant's CPL 440.20 motion to set aside sentence, the court should not have resentenced defendant without conducting a new sentencing proceeding at which defendant and his counsel would be present and have the opportunity to be heard (People v Green, 54 NY2d 878 ).
In view of the remand for resentencing, it is unnecessary to determine whether defendant's sentence is excessive. Concur—Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.