| People v Howard |
| 2012 NY Slip Op 05312 [96 AD3d 1701] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stanley L.Howard, Appellant. (Appeal No. 2.) |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a resentence of the Cayuga County Court (Thomas G. Leone, J.), rendered June30, 2011. Defendant was resentenced upon his conviction of criminal possession of a controlledsubstance in the fifth degree and assault in the second degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of criminal possession of acontrolled substance in the fifth degree (Penal Law § 220.06 [5]) and assault in the seconddegree (§ 120.05 [7]), and he appeals from a resentence on those convictions. CountyCourt (Corning, J.) originally sentenced defendant as a second felony offender to anindeterminate term of imprisonment on the conviction of criminal possession of a controlledsubstance and a determinate term of imprisonment of five years on the conviction of assault, butit failed to impose a period of postrelease supervision (PRS) on the determinate sentence asrequired by Penal Law § 70.45 (1). County Court (Leone, J.), with the People's consent,thereafter resentenced defendant to the same terms of imprisonment previously imposed, withoutadding a term of PRS (see § 70.85; see also Correction Law §601-d).
To the extent that defendant challenges the severity of his resentence, that challenge isbeyond the scope of our review. Where, as here, the resentence is conducted for the purpose ofrectifying a Sparber error—that is, an error in failing to impose a required period ofPRS (see People v Sparber, 10NY3d 457, 464-465 [2008])—"[t]he defendant's right to appeal is limited to thecorrection of errors or the abuse of discretion at the resentencing proceeding," and this Court"may not reduce the [defendant's] prison sentence on appeal in the interest of justice" (People v Lingle, 16 NY3d 621,635 [2011]; see People vCovington, 88 AD3d 486, 486-487 [2011], lv denied 18 NY3d 858 [2011]).
Defendant failed to preserve for our review his contention that, at resentencing, the Peoplewere required to re-prove his status as a second felony offender and the court (Leone, J.) wasrequired to re-adjudicate him as such (see generally CPL 470.05 [2]). In any event, thatcontention lacks merit. At defendant's original sentencing, the People and the court (Corning, J.)[*2]complied with the requirements of CPL 400.21, anddefendant admitted his status as a second felony offender. Thus, we conclude that there was"substantial compliance" with CPL 400.21 at resentencing despite the court's failure to adjudicatedefendant a second felony offender again (People v Mateo, 53 AD3d 1111, 1112 [2008], lv denied 11NY3d 791 [2008]).
We have reviewed defendant's remaining contention and conclude that it does not requirereversal or modification of the resentence. Present—Scudder, P.J., Smith, Centra, Sconiersand Martoche, JJ.