SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 13, 2009
THE PEOPLE OF THE STATE OF NEW YORK,
MARLO J. CARTER,
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), rendered August 18, 2008.
PRESENT: HURLBUTT, J.P., CENTRA, FAHEY, CARNI, AND PINE, JJ.
MEMORANDUM AND ORDER
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 as modified the judgment is affirmed, and the matter is remitted to Chautauqua County Court for further proceedings in accordance with the following Memorandum: Defendant appeals 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 ). We agree with defendant that County Court erred in imposing an enhanced sentence because it "did not advise defendant that a harsher sentence than he bargained for could be imposed if [he] failed to appear at sentencing" (People v Ortiz, 244 AD2d 960, 961; see People v Sundown, 305 AD2d 1075). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea (see People v Walker, 45 AD3d 1401).
Patricia L. Morgan Clerk of the Court
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