Opinion
No. KA 07-02578.
June 19, 2009.
Present: Smith, J.P., Centra, Peradotto and Gorski, JJ.
Upon the Court's own motion, the memorandum and order entered February 6, 2009 ( 59 AD3d 942, amended on rearg 63 AD3d 1671) is further amended by deleting "as a matter of discretion in the interest of justice and" from the ordering paragraph and by deleting the fifth sentence of the memorandum and substituting the following sentences: "We reach this issue sua sponte, and we note that preservation is not required inasmuch as the ` "essential nature" of the right to be sentenced as provided by law' is implicated ( People v Fuller, 57 NY2d 152, 156). To the extent that People v Jackson ( 23 AD3d 1057, lv denied 6 NY3d 814) holds otherwise, it is no longer to be followed."