| People v Clark |
| 2011 NY Slip Op 00445 [80 AD3d 1079] |
| January 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyClark, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered January 14, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2007, defendant pleaded guilty to attempted criminal possession of a controlled substancein the third degree, a class C felony, and was sentenced to five years of probation. He wassubsequently charged with violating his probation. Following a violation hearing, County Courtrevoked his probation and resentenced him on the original charge to a term of imprisonment ofsix years, with two years of postrelease supervision. Defendant now appeals.
Defendant's contention that County Court abused its discretion by failing to order an updatedpresentence investigation report prior to resentencing him is unpreserved for our review in lightof defendant's failure to request an updated report, make an objection during resentencing ormove to vacate the sentence on this ground (see People v Ruff, 50 AD3d 1167, 1168 [2008]; People v Kaulback, 46 AD3d1027, 1028 [2007]). In any event, the record reflects that two of defendant's probationofficers apprised County Court of defendant's conduct subsequent to the presentenceinvestigation report, and defendant was given an opportunity to convey any pertinent informationto the court prior to resentencing (see People v Kaulback, 46 AD3d at 1028; People v Fernandez, 7 AD3d 886,887 [2004]).[*2]
We do find and the People concede, that defendant'sresentence to six years in prison is illegal. Defendant was convicted of a class C drug felony(see Penal Law §§ 110.00, 110.05, 220.16 [1]) and was not sentenced as asecond felony offender (see Penal Law § 70.06) or a second felony drug offender(see Penal Law § 70.70 [3]). Accordingly, defendant was required to be sentencedto a prison term of at least one year but not to exceed 5½ years (see Penal Law§ 70.70 [2] [a] [ii]). Inasmuch as defendant's resentence exceeded the legal maximum, theresentence must be vacated and the matter remitted to County Court for resentencing.
Peters, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of SullivanCounty for resentencing; and, as so modified, affirmed.