Consolidated appeal from (1) a judgment of Justice Court of the Village of Sands Point, Nassau County (Jerome S. Boros, J.), rendered August 15, 2006, and (2) an amended judgment of that court (Jerome S. Boros, J.), rendered January 11, 2007. The judgment convicted defendant, upon her plea of guilty, of speeding (Village of Sands Point Traffic Ordinance § 163-3) and sentenced her to a 90-day driver's license suspension and a $300 fine. The amended judgment resentenced defendant by vacating the 90-day driver's license suspension and imposing in its place a driver's license and motor vehicle registration revocation.

Amended judgment reversed on the law and resentence vacated.

Judgment of conviction modified as a matter of discretion in the interest of justice by vacating the sentence imposed, remitting the fine, if paid, and remanding the matter to the court below for resentencing.

The only issues raised by defendant pertain to her sentence and resentence. With respect to the resentencing of January 11, 2007, this resentencing by written decision was invalid, as it took place in violation of defendant's right to be present (see CPL 380.40; People v Smith, 68 NY2d 725 [1986]; People v Brown, 155 AD2d 608 [1989]; People v Chillino, 10 Misc 3d 136[A], 2005 NY Slip Op 52129[U] [App Term, 9th & 10th Jud Dists 2005]). Hence, the resentence must be vacated, and we must accordingly consider the propriety of the original sentence of August 15, 2006. With respect to that sentence, the lower court appears to have been improvidently influenced, in reaching its determination, by its conclusion that defendant's speeding was the result of a psychological disorder. There was no medical testimony in support of this conclusion, and it was therefore inappropriate for the court to use it as a factor in the sentencing determination. Thus, as a matter of discretion in the interest of justice, we vacate the original sentence and remit the matter for resentencing (see generally People v Agha, 43 AD3d 1383 [2007]). [*2]
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 16, 2008