People v. Avery

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Supreme Court abused its discretion in sentencing defendant pursuant to its inflexible sentencing policy with regard to probation violators (see, People v Nicholson, 237 AD2d 973, Iv denied 90 NY2d 908). We reject the contention of defendant, however, that the matter should be remitted to a different Justice for resentencing. We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing. (Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Violation of Probation.) Present — Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.