| People v Campbell |
| 2013 NY Slip Op 07287 [111 AD3d 1253] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vShannon Campbell, Appellant. |
—[*1] Shannon Campbell, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Erie County (M. William Boller,A.J.), rendered January 24, 2012. Defendant was resentenced upon his conviction ofsexual abuse in the first degree, rape in the first degree (three counts), endangering thewelfare of a child (three counts), sodomy in the first degree (three counts) and incest.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of, inter alia, threecounts each of rape in the first degree (Penal Law § 130.35 [3]) and sodomy in thefirst degree (former § 130.50 [3]). On a prior appeal, we affirmed the judgment ofconviction (People v Campbell, 286 AD2d 979 [2001], lv denied 97NY2d 702 [2002]), and defendant now appeals from a resentence pursuant to CorrectionLaw § 601-d and Penal Law § 70.85. Defendant failed to preserve for ourreview his contention that Supreme Court erred in failing to order an updatedpresentence report "inasmuch as he never requested such an update, objected to thepresentence report at the resentencing, or moved to vacate the resentencing on thatground" (People v Lard, 71AD3d 1464, 1465 [2010], lv denied 14 NY3d 889 [2010]). In any event,defendant's contention is without merit. "[T]he decision whether to obtain an updated[presentence] report at resentencing is a matter resting in the sound discretion of thesentencing [court] . . . Where, as here, [the] defendant has been continuallyincarcerated between the time of the initial sentencing and resentencing, to require anupdate . . . does not advance the purpose of CPL 390.20 (1)" (id.[internal quotation marks omitted]; see People v Cobado, 104 AD3d 1322, 1322-1323 [2013];see generally People v Kuey, 83 NY2d 278, 282-283 [1994]). We rejectdefendant's further contention that the imposition of five-year periods of postreleasesupervision (PRS) is unduly harsh and severe, but we note, as we did in the originalappeal, that the aggregate sentence of 75 years of incarceration is reduced by operation oflaw to 50 years (see Penal Law § 70.30 [1] [e] [vi]).
We do not address any of the contentions raised by defendant in his pro sesupplemental brief inasmuch as they concern matters related to the original proceeding."Where, as here, the resentence is conducted for the purpose of rectifying aSparber error—that is, an error in failing [*2]to impose a required period of PRS (see People v Sparber, 10NY3d 457, 464-465 [2008])—'[t]he defendant's right to appeal is limited tothe correction of errors or the abuse of discretion at the resentencing proceeding' " (People v Howard, 96 AD3d1701, 1702 [2012], lv denied 19 NY3d 1103 [2012], quoting People v Lingle, 16 NY3d621, 635 [2011]). Present—Scudder, P.J., Centra, Lindley and Whalen, JJ.