| People v Smith |
| 2004 NYSlipOp 04984 |
| June 14, 2004 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert S. Smith, Appellant. |
—[*1]
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered January 27, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree and criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Orleans County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of, inter alia, assault in the first degree (Penal Law § 120.10 [3]). The record supports defendant's contention that County Court failed to set forth its reasons for excepting the statement made by the victim from the presentence report as required by CPL 390.50 (2) (a). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing, at which time the court shall either disclose the victim's statement to defendant, or set forth its reasons for exercising its discretion not to disclose the statement (see People v Butler, 54 AD2d 56, 59-60 [1976]; see also Matter of Shader v People, 233 AD2d 717 [1996]). Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.