| People v Lard |
| 2010 NY Slip Op 02270 [71 AD3d 1464] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lonnie Lard,Also Known as Lonnie Anthony, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a resentence of the Erie County Court (Sheila A. DiTullio, J.), renderedFebruary 11, 2009. Defendant was resentenced pursuant to Correction Law § 601-d andPenal Law § 70.85.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of attempted assault in thefirst degree (Penal Law §§ 110.00, 120.10 [1]) and criminal possession of a weaponin the third degree (§ 265.02 [former (4)]). On a prior appeal, we affirmed the resentenceupon that conviction (People vLard, 23 AD3d 1033 [2005], lv denied 6 NY3d 752 [2005], 6 NY3d 815[2006]), and defendant now appeals from a resentence pursuant to Correction Law § 601-dand Penal Law § 70.85 to the same sentence. Defendant failed to preserve for our reviewhis contention that County Court erred in failing to order an updated presentence reportinasmuch as he never requested such an update, objected to the presentence report at theresentencing, or moved to vacate the resentencing on that ground (see People v Ruff, 50 AD3d 1167,1168 [2008]; People v Walts, 34AD3d 1043, 1044 [2006], lv denied 8 NY3d 850 [2007]). In any event, defendant'scontention is without merit. "[T]he decision whether to obtain an updated [presentence] report atresentencing is a matter resting in the sound discretion of the sentencing [court]" (People vKuey, 83 NY2d 278, 282 [1994]). "Where, as here, [the] defendant has been continuallyincarcerated between the time of the initial sentencing and resentencing, 'to require an update. . . does not advance the purpose of CPL 390.20 (1)' " (People v James, 4 AD3d 774, 775[2004], quoting Kuey, 83 NY2d at 282). We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Smith, J.P., Fahey, Carni,Sconiers and Pine, JJ.