| People v Warren |
| 2011 NY Slip Op 06433 [87 AD3d 1185] |
| September 15, 2011 |
| Appellate Division, Third Department |
| the People of the State of New York, Respondent, v TerrellA. Warren, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered July1, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of acontrolled substance in the third degree.
Defendant pleaded guilty to attempted criminal possession of a controlled substance in thefirst degree. He was sentenced, as a second felony offender, in accordance with the negotiatedplea agreement to 10 years in prison followed by five years of postrelease supervision, to runconcurrently with an unrelated prison term. On appeal, this Court found the sentence to be illegaland, consequently, vacated the sentence and remitted the matter to County Court for resentencing(People v Warren, 74 AD3d1639 [2010]). Thereafter, defendant withdrew his previous plea and entered a plea of guiltyto criminal possession of a controlled substance in the third degree and was sentenced, as asecond felony offender, in accordance with the plea agreement to a prison term of 10 years to befollowed by three years of postrelease supervision. Defendant appeals.
Initially, defendant's contention that County Court abused its discretion in not updatingdefendant's presentence investigation report prior to sentencing is unpreserved for our reviewinasmuch as defendant did not request an updated report or move to vacate resentencing (see People v Cerone, 75 AD3d835, 836 [2010], lv denied 15 NY3d 850 [2010]; People v Sander, 47 AD3d 1012, 1013 [2008], lv denied 10NY3d 844 [2008]). In any event, defense counsel specifically requested that the court proceed tosentencing without an updated presentence report, stating that nothing had changed from the timethe court initially sentenced defendant on his prior [*2]plea—other than defendant's participation in certainprograms that defense counsel placed on the record. Furthermore, upon our review of the record,we are unpersuaded by defendant's assertion that the sentence imposed is harsh and excessive orthat extraordinary circumstances exist to warrant a reduction thereof (see People v Dolison, 23 AD3d844, 845 [2005], lv denied 6 NY3d 812 [2006]).
Defendant's remaining contention has been considered and found to be without merit.
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.