People v. Eubanks

*1043Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered May 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing.

Memorandum: Defendant contends that County Court erred in sentencing him upon a felony conviction without ordering a…