| People v Agha |
| 2007 NY Slip Op 07187 [43 AD3d 1383] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shadi Agha,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Hannah Stith Long of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered October 4,2006. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is modifiedon the law by vacating the sentence and as modified the judgment is affirmed, and the matter isremitted to Erie County Court for resentencing in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the thirddegree (Penal Law § 120.00 [1]). At sentencing, County Court referred to a priorconviction of defendant's brother for a similar crime. The court indicated that, in the prior caseand the instant case, defendant's brother had come to the defense of defendant. Defendantobjected on the ground that he was not charged in the prior case involving his brother. Althoughthe court stated that it would not draw an adverse inference against defendant based on the priorcase, we conclude on the record before us that the court may in fact have relied upon informationthat was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223 [2006], lv denied7 NY3d 812 [2006]). We therefore modify the judgment by vacating the sentence, and weremit the matter to County Court for resentencing before a different judge.
All concur except Smith, J., who dissents and votes to affirm in the following memorandum.
Smith, J. (dissenting). I respectfully dissent and would affirm the judgment of conviction.Defendant contends that County Court considered inaccurate and improper information insentencing him. Even assuming, arguendo, that the contention of defendant survives his waiverof the right to appeal (see generallyPeople v Lopez, 6 NY3d 248, 255-256 [2006]), I conclude that it should be rejected.The presentence report indicated that the codefendant, defendant's brother, had previously beenconvicted of assaultive conduct while coming to defendant's aid. Defendant did not contest theaccuracy of that information and thus has failed to preserve for our review his contention that thecourt relied upon inaccurate information in sentencing him (see People v Sumpter, 286AD2d 450, 452 [2001], lv denied 97 NY2d 658 [2001]). Nor did the court rely uponimproper information in sentencing defendant. A presentence report may include any relevantinformation concerning defendant's history, including information with respect to prior offensesthat did not result in a conviction (see People v Whalen, 99 AD2d 883, 884 [1984]).Defendant objected at [*2]sentencing when the court referred tothe codefendant's prior conviction, and the court assured defendant that it would draw no adverseinference against him with respect to that prior conviction. Furthermore, when sentencingdefendant, the court specifically indicated its awareness that defendant was not charged with anycrime arising out of the prior incident involving his brother. Thus, the record does not support thecontention of defendant that the court relied upon inaccurate and improper information insentencing him. Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.