| People v Sumter |
| 2019 NY Slip Op 01460 [169 AD3d 1275] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Sumter, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Connolly, J.), rendered February 28, 2018 inAlbany County, which resentenced defendant upon his conviction of the crime of attempted criminalsale of a controlled substance in the third degree.
In 2013, defendant pleaded guilty to attempted criminal sale of a controlled substance in the thirddegree and waived the right to appeal. County Court (Herrick, J.) sentenced him, as a second felonydrug offender, to time served and five years of probation, with the understanding that if defendantviolated his probation he would be sentenced to a term of imprisonment of between seven and eightyears. Defendant subsequently admitted to violating his probation and again waived the right to appeal.County Court thereafter revoked defendant's probation and sentenced him, as a second felony drugoffender, to seven years in prison, to be followed by three years of postrelease supervision. On appeal,we agreed with defendant that he was improperly adjudicated a second felony drug offender (157AD3d 1125 [2018]). Accordingly, we vacated defendant's sentence and remitted the matter forresentencing (id. at 1126). Upon remittal, Supreme Court resentenced defendant, as a first-timefelony drug offender, to 5
Initially, defendant's waiver of the right to appeal regarding his plea to the probation violation wasentered under the misconception by all parties that defendant was a second felony drug offender.Accordingly, the waiver does not preclude our review of defendant's appeal on resentencing because"the plea was entered pursuant to conditions that changed after defendant's waiver" (People vVarnum, 291 AD2d 724, 725 [2002]; see People v Tausinger, 21 AD3d 1181, 1183 [2005]). We agree withdefendant's argument on appeal that the Albany County Public Defender's office was precluded, as amatter of law, from representing him at the resentencing hearing because the Public Defender, prior tobeing appointed to that position, was the County Judge who presided over and initially sentenced him inthis matter (see Judiciary Law § 17; see also People v Oakley, 104 AD3d 1059, 1059-1060 [2013]; Matter of Czajka v Koweek, 100 AD3d1136, 1138-1139 [2012], lv denied 20 NY3d 857 [2013]). Accordingly, the judgmentresentencing defendant must be reversed and the matter remitted for resentencing, with differentrepresentation assigned to defendant. Defendant's remaining claim—that the resentence is harshand excessive—has been rendered academic in light of the foregoing.
Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the Supreme Court for resentencing.