People v. Torres — 67 N.Y.2d 659

Majority

p. 659

The People of the State of New York, Respondent, v Raphael Torres, Appellant.

Argued January 6, 1986;

decided February 4, 1986

p. 660

APPEARANCES OF COUNSEL

David Samel and William E. Hellerstein for appellant.

Mario Merola, District Attorney (Kevin Lubin and Billie Manning of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence, and the case remitted to Supreme

p. 661

Court, Bronx County, with instructions to resentence appellant before a different Judge.

The People admit violation of their promise to take no position regarding sentence, but contend defendant has failed to preserve this issue for review. However, defendant can be restored to his presentence position without withdrawing his plea, and he did timely interpose an objection prior to the prosecutor’s remarks at sentencing, when the error could have been cured (see, People v Tindle, 61 NY2d 752 , 754).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order modified and case remitted to Supreme Court, Bronx County, with instructions to resentence appellant in accordance with the memorandum herein and, as so modified, affirmed.

Cases cited

People v. Tindle 61 NY2d 752 N.Y. 1984-01-17 at 754 p. 661