ORDERED that the judgment is affirmed; and it is further,
ORDERED that the amended sentence is vacated, and the matter is remitted to the Supreme Court, Queens County, for resentencing on the conviction of attempted rape in the first degree, in accordance herewith.
We disagree with the defendant's contention that his conviction must be reversed because of prosecutorial misconduct throughout the trial. With respect to any prosecutorial misconduct that may have occurred during the trial, the misconduct did not substantially prejudice the defendant's trial (see People v. Galloway, 54 N.Y.2d 396, 401; People v. White, 196 A.D.2d 641).
As the People correctly concede on this appeal, the Supreme Court's failure to have the defendant produced for resentencing on his conviction of attempted rape in the first degree after it determined that the original sentence was unlawful, violated the defendant's statutory right to be present at the time sentence is pronounced (see CPL 380.40; People v. Crossland, 251 A.D.2d 509; People v. Brown, 155 A.D.2d 608; People v. Lucks, 91 A.D.2d 896, 897).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
ALTMAN, J.P., McGINITY, TOWNES and CRANE, JJ., concur.