| People v Shapard |
| 2009 NY Slip Op 00903 [59 AD3d 1054] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherM. Shapard, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered July 16, 2007. The judgment convicted defendant, upon his plea of guilty, of assault inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Erie County, for resentencing in accordance with the following memorandum:Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in thesecond degree (Penal Law § 120.05 [7]). We agree with defendant that his waiver of thepresentence report should not have been given effect pursuant to CPL 390.20 (4) (a). Such awaiver is not authorized where, as here, "an indeterminate or determinate sentence ofimprisonment is to be imposed" (id.). Defendant pleaded guilty to a class D felony andagreed that he was properly classified as a persistent violent felony offender. Supreme Courttherefore was required to impose a term of imprisonment upon that conviction (Penal Law§ 70.08 [3] [c]; § 120.05 [7]), and thus was also required to order a presentencereport prior to imposing the bargained-for sentence (see generally People v Selikoff, 35NY2d 227, 238 [1974], cert denied 419 US 1122 [1975]; Preiser, PracticeCommentaries, McKinney's Cons Laws of NY, Book 11A, CPL 390.20). We therefore modifythe judgment by vacating the sentence, and we remit the matter to Supreme Court forresentencing in compliance with CPL 390.20 (1).
In light of our decision, we do not reach defendant's remaining contentions.Present—Centra, J.P., Peradotto, Green and Pine, JJ.