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

6
KA 08-01799
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ALINA PHELPS, DEFENDANT-APPELLANT.


ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered May 14, 2008. The judgment convicted defendant,
upon her plea of guilty, of attempted burglary in the second 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
Steuben County Court for further proceedings in accordance with the
following Memorandum: Defendant appeals from a judgment convicting
her, upon her plea of guilty, of attempted burglary in the second
degree (Penal Law §§ 110.00, 140.25 [2]). We agree with defendant
that County Court erred in directing that the determinate sentence of
imprisonment of four years for the instant offense run concurrently
with a determinate sentence of imprisonment of three years imposed on
a prior felony conviction without making “a statement on the record of
the facts and circumstances” warranting that determination (§ 70.25
[former (2-b)]; see People v Davis, 37 AD3d 1179, 1180, lv denied 8
NY3d 983). Defendant committed the instant offense while released on
bail or recognizance pending sentencing on the prior felony and, thus,
in the absence of mitigating factors set forth on the record, the
court was required to direct that the sentence run consecutively to
the sentence imposed on the prior felony conviction (see § 70.25
[former (2-b)]; Davis, 37 AD3d at 1180). We therefore modify the
judgment by vacating the sentence, and we remit the matter to County
Court to afford defendant the opportunity to withdraw her plea or to
be resentenced in compliance with Penal Law § 70.25 (former [2-b])
(see People v Lee, 64 AD3d 1236, 1237).




Entered:    January 31, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
