
    The People of the State of New York, Respondent, v Damion Smith, Appellant.
    (Appeal No. 2.)
    [768 NYS2d 888]
   — Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered May 16, 2001, which revoked defendant’s probation and imposed a sentence of imprisonment.

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 Supreme Court, Erie County, for resentencing in accordance with the same memorandum as in People v Smith (2 AD3d 1431 [2003]). Present—Green, J.P., Hurlbutt, Scudder, Kehoe and Hayes, JJ.  