| People v Pelczynski |
| 2007 NY Slip Op 07086 [43 AD3d 1279] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel W.Pelczynski, Appellant. |
—[*1] Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a resentence of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedMay 3, 2005. Defendant was resentenced following his conviction, upon his plea of guilty, ofsexual abuse in the first degree.
It is hereby ordered that the resentence so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of sexual abuse in the firstdegree (Penal Law § 130.65 [3]), and he now appeals from the resentence upon thatconviction. "Because the resentence occurred more than 30 days after the original sentence andthere was no timely notice of appeal from the original judgment of conviction, any contentions ofdefendant with respect to the original judgment of conviction are not properly before us on thisappeal" (People v Lard, 23 AD3d1033 [2005], lv denied 6 NY3d 755, 815 [2005]; see CPL 450.30 [3]; People v Coble, 17 AD3d 1165[2005], lv denied 5 NY3d 787 [2005]). By failing to object to the resentencing or tomove to withdraw his guilty plea or to vacate the judgment of conviction based upon theresentencing, defendant failed to preserve for our review his contention concerning theresentencing (see People v Alford, 272 AD2d 901 [2000], lv denied 96 NY2d780 [2001]; see also People v Matthews, 306 AD2d 863 [2003]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Scudder, P.J., Martoche, Centra, Green and Pine, JJ.