Opinion
KA 03-00350.
December 31, 2003.
Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered May 16, 2001, which revoked defendant's probation and imposed a sentence of imprisonment.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing in accordance with the same Memorandum as in People v. Smith ([appeal No. 1] 2 A.D.3d 1431).