Crimes - Sentence - Defendant Absent from Resentencing Where Court Impermissibly Changed Terms of Plea and Sentence - Matter Remanded to Afford Defendant Opportunity to be Present and Withdraw Plea

Judgment, Supreme Court, New York County (Ellen Biben, J.), rendered August 12, 2019, as amended August 19, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree and sentencing him to four years of probation and rescinding a certificate of relief from civil disabilities previously granted, unanimously modified, on the law, to the extent of vacating the resentence of defendant and remanding the matter for further proceedings.

The People concede that the sentencing court impermissibly changed the terms of defendant's plea and sentence after he was sentenced and resentenced him in his absence. Where the improperly resentenced defendant has appealed the judgment but has not yet formally moved to withdraw the plea, the proper procedure is not an immediate vacatur of the plea and conviction (see People v DeValle, 94 NY2d 870, 872 [2000]; People v Estremera, 30 NY3d 268, 271-273 [2017]). Accordingly, the matter is remanded so defendant may be afforded the opportunity to move to withdraw his plea and, in accordance with his rights, be present at any resentencing proceeding. Concur—Manzanet-Daniels, J.P., Kennedy, Kapnick, Scarpulla, Higgitt, JJ.