           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

654
KA 11-01322
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

KHALLIN D. BIGBY, ALSO KNOWN AS KO, ALSO KNOWN
AS CALI, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     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 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). 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, lv denied 47 NY2d 706; see also People
v Aiken, 45 NY2d 394, 397-398). 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). In light of our
decision, we do not address defendant’s challenge to the severity of
the sentence.




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
