Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered May 15, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the same memorandum as in People v Wisniewski (77 AD3d 1324 [2010] [decided herewith]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.