Opinion
February 16, 2000
Appeal from Judgment of Onondaga County Court, Mulroy, J. — Robbery, 1st Degree.
PRESENT: PINE, J. P., HAYES, PIGOTT, JR., AND BALIO, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for resentencing in accordance with the following Memorandum: Defendant appeals from a judgment convicting him in 1997 of robbery in the first degree (Penal Law § 160.15) under indictment No. 97-0123-1. On the same day that he pleaded guilty to that indictment, he also pleaded guilty to another charge of robbery in the first degree under indictment No. 97-0268-3. He was sentenced to concurrent terms of incarceration of 5 1/3 to 11 years on each conviction. Defendant contends and the People appear to concede that he was resentenced on indictment No. 97-0123-1. There is, however, no notice of appeal from resentencing on this indictment, and the record indicates that defendant was resentenced on the ground that the original sentence was illegal on indictment No. 97-0268-3 only. We reversed that resentence because defendant was absent therefrom ( People v. Brown, 261 A.D.2d 890). The sentence imposed under indictment No. 97-0123-1 also is illegal and must be vacated ( see, Penal Law § 70.02 [former (3) (a)], [former (4)]). We thus modify the judgment by vacating the sentence, and we remit this matter to Onondaga County Court for resentencing.