The People of the State of New York, Respondent, v. Cyrus Eubanks, Also Known as Oneil Campbell, Appellant

The People of the State of New York, Respondent, v Cyrus Eubanks, Also Known as Oneil Campbell, Appellant. [778 NYS2d 366] [MAJORITY] Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered May 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing. Memorandum: Defendant contends that County Court erred in sentencing him upon a felony conviction without ordering a presentence investigation (see CPL 390.20 [1]). The People concede that the investigation and written report thereon were not waived by the parties with the consent of the court pursuant to CPL 390.20 (4) and thus that the sentence must be vacated (see People v Graci, 275 AD2d 421 [2000]). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing. Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.