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

314
KA 14-01958
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

FRANK VANALST, ALSO KNOWN AS SHAUN JOHNSON,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered July 30, 2014. The judgment revoked a
conditional discharge and imposed a term of imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously vacated on the law, and the matter is remitted to Ontario
County Court for further proceedings on the indictment.

     Memorandum: Defendant appeals from a judgment imposing a term of
imprisonment upon the determination of County Court that he violated
the terms and conditions of a conditional discharge that had been
imposed upon his purported conviction of criminal possession of a
controlled substance in the fifth degree (Penal Law § 220.06 [1]) upon
his plea of guilty. The People correctly concede that the parties and
the court mistakenly believed that defendant had entered a plea of
guilty at a prior appearance, when in fact, no plea proceeding had
taken place. Inasmuch as there is no conviction (see generally CPL
1.20 [13]), we conclude that the subsequent sentence imposing a
conditional discharge, the determination on the declaration of
delinquency, and the imposition of a term of imprisonment are void
(see generally CPL 1.20 [15]). We therefore vacate the judgment and
remit the matter to County Court for further proceedings on the
indictment (see generally People v Tyrell, 22 NY3d 359, 366).




Entered:    March 24, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
