People v Rosario

2005 NYSlipOp 08143

October 31, 2005

Appellate Division, Second Department

The People of the State of New York, Respondent, v Jose Rosario, Appellant.

—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ferdinand, J.), rendered March 22, 2004, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence, and imposing an additional sentence for the crime of criminal possession of a controlled substance in the seventh degree.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed for the crime of criminal possession of a controlled substance in the seventh degree; as so modified, the judgment is affirmed.

The defendant's contention that the sentence imposed was unconstitutional as applied under the cruel and unusual punishment clause is unpreserved for appellate review (see People v Gomez, 277 AD2d 250 [2000]; People v Bolton, 239 AD2d 511, 511-512 [1997]; People v Mateo, 144 AD2d 388 [1988]). In any event, his contention is without merit (see People v Thompson, 83 NY2d 477 [1994]; People v Broadie, 37 NY2d 100 [1975], cert denied 423 US 950 [1975]).

As the People correctly concede, the sentencing court erred in imposing an additional sentence for the crime of criminal possession of a controlled substance in the seventh degree, since the defendant did not plead guilty to that offense (see People v Brown, 244 AD2d 348 [1997]). Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.