| People v Cobado |
| 2013 NY Slip Op 01975 [104 AD3d 1322] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMatthew M. Cobado, Appellant. |
—[*1]
Appeal from a resentence of the Cattaraugus County Court (Larry M. Himelein, J.),rendered August 8, 2011. Defendant was resentenced upon his conviction of rape in thefirst degree (four counts) and criminal possession of a weapon in the second degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a resentence pursuant to which County Courtadded various terms of postrelease supervision (PRS) to the sentence previously imposedin 2003 on his conviction, following a jury trial, of four counts of rape in the first degree(Penal Law § 130.35 [1]) and criminal possession of a weapon in the seconddegree (§ 265.03 [2]). Defendant failed to preserve for our review his contentionthat the court erred in resentencing him without ordering an updated presentence reportin accordance with CPL 390.20 (see People v Lard, 71 AD3d 1464, 1465 [2010], lvdenied 14 NY3d 889 [2010]). In any event, that contention lacks merit. "Where, ashere, [the] defendant has been continually incarcerated between the time of the initialsentencing and resentencing, to require an update . . . does not advance thepurpose of CPL 390.20 (1)" (id. [internal quotation marks omitted]; seePeople v Kuey, 83 NY2d 278, 282-283 [1994]; People v James, 4 AD3d 774, 775 [2004]).
We reject defendant's further contention that he was deprived of effective assistanceof counsel at resentencing (see generally People v Baldi, 54 NY2d 137, 147[1981]). Although defense counsel did not say anything on the record on defendant'sbehalf, the court ultimately imposed the minimum authorized term of PRS for the rapeconvictions (see Penal Law § 70.45 [2-a] [c]), and an equal term of PRSfor the weapons offense. Present—Smith, J.P., Peradotto, Lindley, Valentino andWhalen, JJ.