Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered October 4, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the third degree (Penal Law § 120.00 [1]). At sentencing, County Court referred to a prior conviction of defendant’s brother for a similar crime. The court indicated that, in the prior case and the instant case, defendant’s brother had come to the defense of defendant. Defendant objected on the ground that he was not charged in the prior case involving his brother. Although the court stated that it would not draw an adverse inference against defendant based on the prior case, we conclude on the record before us that the court may in fact have relied upon information that was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223 [2006], lv denied 7 NY3d 812 [2006]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing before a different judge.
All concur except Smith, J., who dissents and votes to affirm in the following memorandum.