JAMES, ELLIOTT I., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1346
KA 12-00823
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ELLIOTT I. JAMES, ALSO KNOWN AS PIG,
DEFENDANT-APPELLANT.
CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Cattaraugus County Court (Larry
M. Himelein, J.), rendered April 9, 2012. Defendant was resentenced
upon his conviction of criminal possession of a controlled substance
in the third degree.
It is hereby ORDERED that the resentence so appealed from is
unanimously vacated on the law and the matter is remitted to
Cattaraugus County Court for further proceedings in accordance with
the following Memorandum: Defendant appeals from a resentence imposed
upon his conviction of criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]). On appeal, defendant
contends that County Court erred in denying his request to redact the
presentence report to correct alleged inaccuracies therein, and in
failing to conduct a conference or summary hearing to address the
alleged inaccuracies. Specifically, defendant contends that the
presentence report contained errors with respect to his criminal
history. In addition, he contends that the presentence report
erroneously included statements that he has a history of assault
toward women and that he is at the highest possible risk for violent
recidivism, when in fact his criminal history does not contain any
convictions based on violent crimes. “ ‘If the investigation report
contains incorrect information, [defendant] should object at
sentencing to the inclusion of the erroneous information and move to
strike it . . . The court may conduct a conference or a summary
hearing to resolve discrepancies in sentencing information’ ” (People
v Boice, 6 Misc 3d 1014[A], 2004 NY Slip Op 51788[U], *4-5). When
defendant herein objected to the contents of the presentence report
and sought redaction, the court stated that it did not know the
procedure by which to correct the information. We thus conclude that
defendant was not properly afforded an opportunity to challenge the
contents of the presentence report (cf. People v Thomas, 2 AD3d 982,
-2- 1346
KA 12-00823
984, lv denied 1 NY3d 602). We therefore vacate the resentence and
remit the matter to County Court for further proceedings in accordance
with our decision.
Entered: February 14, 2014 Frances E. Cafarell
Clerk of the Court