People v Cunningham (Dee)

[*1] People v Cunningham (Dee) 2006 NY Slip Op 52275(U) [13 Misc 3d 142(A)] Decided on November 24, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 24, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ
2005-440 OR CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Dee Dee Cunningham, Appellant.

Appeal from an amended judgment of the Justice Court of the Village of Chester, Orange County (L. Fred Van Der Muelen, J.), rendered January 8, 2004. The amended judgment revoked a sentence of probation previously imposed upon a finding that defendant had violated a condition thereof, and imposed a sentence of 275 days' incarceration upon her previous conviction of petit larceny.

Amended judgment of conviction modified as a matter of discretion in the interest of justice by vacating the sentence imposed and remanding the matter to the court below for resentencing upon an updated presentence report before a different judge.

Defendant, a former employee of the Ames Department Store in the Chester Mall, was originally charged with petit larceny for stealing small amounts of cash, totalling the sum of $85, from her cash register. On December 13, 2001, she was sentenced to three years' probation for this misdemeanor. Thereafter, defendant admitted to violating probation and, on January 8, 2004, was resentenced to 275 days' incarceration. Defendant has obtained a stay of execution of her sentence.

In light of defendant's admission, there is no basis to disturb the determination that defendant violated her probation. However, under all of the circumstances presented, including allegations deemed admitted due to the failure of the court below to file a return (see People v Feldes, 73 NY2d 661 [1989]), we are of the view that defendant should be resentenced upon an updated presentence report (see CPL 390.20 [3]) before a different judge. [*2]

We regard proceedings before a different judge to be particularly appropriate in the instant case because of the failure of the court below (L. Fred Van Der Muelen, J.) to comply with an order of this court dated May 11, 2006 directing it to satisfy statutory requirements for the filing of a justice's return responding to the defendant's affidavit of errors (CPL 460.10 [3] [d] [e]).

We do not pass upon defendant's contentions relating to the original judgment of conviction, from which she did not appeal (see People v Brodsky, 16 AD3d 842 [2005]).

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: November 24, 2006