The People of the State of New York, Respondent, v. Kirk Hudson, Appellant

The People of the State of New York, Respondent, v Kirk Hudson, Appellant. [704 NYS2d 105] [MAJORITY] —Appeal by the defendant from an amended sentence of the Supreme Court, Kings County (Starkey, J.), rendered September 8, 1999, revoking a sentence of probation previously imposed by the same court upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment of two to six years upon his previous conviction of criminal possession of a weapon in the third degree. Ordered that the amended sentence is vacated, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance with the decision and order of this Court dated July 26, 1999, in People v Hudson (263 AD2d 545). By decision and order of this Court dated July 26, 1999, the matter was remitted to the Supreme Court, Kings County, for resentencing, and the sentencing court was specifically directed to resentence the defendant “based solely on the specification charging him with a violation of probation based on failing to report to his probation officer” (People v Hudson, 263 AD2d 545, 546, supra). However, the minutes of the resentencing proceedings demonstrate that in resentencing the defendant, the Supreme Court, in contradiction of this Court’s instructions, improperly considered a specification relating to a charge of burglary to which the defendant did not admit and as to which there was no hearing. O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.