
    The People of the State of New York, Respondent, v Michael T. Diefenbacher, Appellant.
    (Appeal No. 2.)
    [801 NYS2d 200]
   Appeal from a resentence of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered August 12, 2003. Defendant was resentenced upon a conviction for burglary in the second degree (two counts), assault in the second degree and criminal mischief in the fourth degree.

It is hereby ordered that the resentence so appealed from be and the same hereby is unanimously reversed on the law and the matter is remitted to Oswego County Court for further proceedings in accordance with the same memorandum as in People v Diefenbacher (21 AD3d 1293 [2005]). Present—Green, J.P., Scudder, Kehoe, Smith and Lawton, JJ.  