People v. Foster

Order unanimously reversed and judgment insofar as it imposed sentence vacated and matter remitted to Cattaraugus County Court for a hearing in accordance with the following Memorandum: The court shall conduct a hearing as to the sentence to be imposed upon such conviction in accordance with People v. Bailey (21 N Y 2d 588) and thereupon resentence defendant in the light of the evidence adduced at such hearing. (See, also People v. Schaap, 28 A D 2d 1202.) (Appeal from order of Cattaraugus County Court denying, without a hearing, motion to vacate judgment of conviction for sodomy, first degree, rendered January 6, 1964.) Present— Bastow, P. J., Williams, Del Vecchio, Marsh and Witmer, JJ.