People v. Bigby

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J), rendered September 7, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree. It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence and [1430] as modified the judgment is affirmed, and the matter is remitted to Cayuga County Court for resentencing. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends that County Court erred in sentencing him in the absence of defense counsel. As the People correctly concede, defendant is correct. “Sentencing is a critical stage of a criminal proceeding which implicates the right to counsel” (People v Harris, 79 NY2d 909, 910 [1992]). Although defendant failed to appear at sentencing, he did not, by virtue of his absence alone, waive his right to counsel at sentencing (see Matter of Root v Kapelman, 67 AD2d 131, 137-138 [1979], lv denied 47 NY2d 706 [1979]; see also People v Aiken, 45 NY2d 394, 397-398 [1978]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Read, 134 AD2d 462, 463 [1987]). In light of our decision, we do not address defendant’s challenge to the severity of the sentence. Present — Scudder, P.J., Smith, Carni, Lindley and Martoche, JJ.