| People v Lakatosz |
| 2011 NY Slip Op 08512 [89 AD3d 1329] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Maria Lakatosz,Also Known as Maria Lakatos and Others, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Roseann B. MacKechnie of counsel),for respondent.
Spain, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered January 31, 2011, which resentenced defendant following her conviction of the crimes ofburglary in the second degree (two counts) and petit larceny (two counts).
In 2003, defendant was convicted following a jury trial of the crimes of burglary in the seconddegree (two counts) and petit larceny (two counts). She was sentenced to consecutive 15-year prisonterms for each burglary conviction, as well as concurrent one-year sentences on the petit larcenyconvictions. On appeal, this Court affirmed the convictions but modified the sentence, in the interest ofjustice, by directing that the 15-year prison terms for the burglary convictions run concurrently to eachother (People v Lakatosz, 59 AD3d813 [2009], lv denied 12 NY3d 917 [2009]). Subsequently, defendant was identified as a"designated person" within the meaning of Correction Law § 601-d (1) because her originaldeterminate sentence did not include a period of postrelease supervision. County Court thereafterresentenced defendant to the sentence as modified by this Court and included three years ofpostrelease supervision. Defendant now appeals, contending that County Court erred in resentencingher without an updated presentence [*2]report and that her resentencewas harsh and excessive.
We affirm. "Whether to obtain an updated presentence report is a matter resting within thediscretion of the sentencing court" (People vHogencamp, 6 AD3d 877, 878 [2004], lv denied 3 NY3d 707 [2004] [citationsomitted]; see People v Kuey, 83 NY2d 278, 282-283 [1994]; People v Lard, 71 AD3d 1464, 1465[2010], lv denied 14 NY3d 889 [2010]). Here, defendant argues that an updated report wasnecessary since she was not interviewed for the initial report that was prepared in 2003. We note,however, that defendant was not interviewed then because she had absconded and was tried andsentenced in absentia. In light of the fact that defendant absconded and did not participate in either hertrial or sentencing, she cannot now complain that the initial presentence report was incomplete due toher lack of participation (see People v Tejada, 171 AD2d 585, 586 [1991]). Further,defendant has been continuously incarcerated since shortly after her initial sentencing and was providedan opportunity to address County Court at resentencing and to submit additional information (see People v Harrington, 14 AD3d944, 945 [2005], lv denied 4 NY3d 887 [2005]; People v Thomas, 283 AD2d724, 724-725 [2001]; see also People v Kuey, 83 NY2d at 282-283). Therefore, we find noabuse of discretion in County Court's denial of defendant's request to order an updated presentencereport.
Regarding defendant's contention that her resentence was harsh and excessive, her right to appealunder these circumstances is "limited to the correction of errors or the abuse of discretion at theresentencing proceeding" (People vLingle, 16 NY3d 621, 635 [2011]). A trial court resentencing a defendant solely for thepurpose of imposing a required term of postrelease supervision has no authority to consider reducingthe incarceration component of the defendant's original sentence and we likewise have no authority toreduce it on appeal in the interest of justice (see id.; People v Myrick, 84 AD3d 1272, 1272 [2011], lv denied 17NY3d 820 [2011]). Inasmuch as our review of the resentencing proceeding shows no errors or abuseof discretion by County Court, defendant's resentence will not be disturbed.
Mercure, J.P., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.