| People v James |
| 2014 NY Slip Op 01092 [114 AD3d 1312] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Elliott I. James, Also Known as Pig,Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a resentence of the Cattaraugus County Court (Larry M. Himelein, J.),rendered April 9, 2012. Defendant was resentenced upon his conviction of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the resentence so appealed from is unanimously vacated onthe law and the matter is remitted to Cattaraugus County Court for further proceedings inaccordance with the following.
Memorandum: Defendant appeals from a resentence imposed upon his conviction ofcriminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]). On appeal, defendant contends that County Court erred in denying hisrequest to redact the presentence report to correct alleged inaccuracies therein, and infailing to conduct a conference or summary hearing to address the alleged inaccuracies.Specifically, defendant contends that the presentence report contained errors with respectto his criminal history. In addition, he contends that the presentence report erroneouslyincluded statements that he has a history of assault toward women and that he is at thehighest possible risk for violent recidivism, when in fact his criminal history does notcontain any convictions based on violent crimes. " 'If the investigation report containsincorrect information, [defendant] should object at sentencing to the inclusion of theerroneous information and move to strike it. . . . The court may conduct aconference or a summary hearing to resolve discrepancies in sentencing information' "(People v Boice, 6 Misc 3d 1014[A], 2004 NY Slip Op 51788[U], *4-5[Chemung County Court 2004]). When defendant herein objected to the contents of thepresentence report and sought redaction, the court stated that it did not know theprocedure by which to correct the information. We thus conclude that defendant was notproperly afforded an opportunity to challenge the contents of the presentence report (cf. People v Thomas, 2 AD3d982, 984 [2003], lv denied 1 NY3d 602 [2004]). We therefore vacate theresentence and remit the matter to County Court for further proceedings in accordancewith our decision. Present—Smith, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.