PEOPLE v. BROWN

Ordered that the amended sentence is vacated, on the law, and the matter is remitted to the Supreme Court, Queens County, for resentencing.

After granting a defendant's motion to set aside a sentence pursuant to CPL 440.20 (1) on the ground it was unauthorized, the court "must resentence the defendant in accordance with the law" (CPL 440.20). CPL 380.40 (1) requires a defendant to be present at the time of sentence except in circumstances not relevant here. Absent an express waiver, the defendant's presence is also required on resentencing (People v Lucks, 91 A.D.2d 896; People v Lee, 84 A.D.2d 699; People v Brown, 79 A.D.2d 659; see also, People v Green, 54 N.Y.2d 878). As the People concede on this appeal, the court's failure to have the defendant produced at resentence denied the defendant his statutory right to be present. Mangano, J.P., Kunzeman, Rubin, Eiber and Balletta, JJ., concur.