161 A.D.2d 1156 | N.Y. App. Div. | 1990
Judgment unanimously modified on the law and as modified affirmed, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The trial court fashioned appropriate sanctions for the failure of the police to comply with Penal Law § 450.10 before returning property to the victim. The police did not act in bad faith and defendant
We conclude, however, that defendant was improperly sentenced as a persistent felony offender because the court based its determination solely upon defendant’s criminal conduct and failed to consider defendant’s "history and character”, as required by CPL 400.20 (1) (b) (see, People v Frey, 100 AD2d 728). Consequently, the sentence should be vacated and the matter is remitted for resentencing. We have examined the remaining issue raised by defendant and find it to be without merit. (Appeal from judgment of Supreme Court, Erie County, Morton, J.—robbery, third degree.) Present—Doerr, J. P., Boomer, Green, Pine and Lawton, JJ.
