| People v Ashley |
| 2018 NY Slip Op 07493 [166 AD3d 1169] |
| November 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Darius T. Ashley, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie Marmor of counsel), forrespondent.
Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered May 8, 2015, convicting defendant following a nonjury trial of the crime ofassault in the second degree.
Defendant was charged in a seven-count indictment with attempted assault in thefirst degree and other crimes stemming from his actions in repeatedly stabbing acorrection officer who was conducting a search of his prison cell. Defendant ultimatelywaived his right to a jury trial and proceeded to a bench trial on stipulated facts.Following the bench trial, County Court found defendant guilty of assault in the seconddegree and imposed the agreed-upon prison sentence of five years with five years ofpostrelease supervision, as a second violent felony offender, to be served consecutivelyto the prison sentence he was then serving. Defendant appeals.
We affirm. Defendant contends that his sentence should be vacated because CountyCourt failed to order an updated presentence report and improperly relied uponpresentence reports prepared in Schenectady and Albany Counties in 2008 and 2005,respectively, in connection with rape and kidnapping convictions (see CPL390.20 [1]). However, defendant's claims are unpreserved as the record does not reflectthat he requested an updated presentence report, he raised no objections to the reports atsentencing and there is no indication that he moved to vacate the sentence (see People v Anderson, 98AD3d 524, 524 [2012], lv denied 20 NY3d 930 [2012]; People v King, 90 AD3d1533, 1534 [2011], lv denied 18 NY3d 959 [2012]; People v Sears,209 AD2d 885, 885 [1994], lv denied 85 NY2d 866 [1995]). In any event, apartially updated presentence report was prepared for the 2015 sentencing, whichincorporated the prior reports, and defendant had an opportunity to present updatedinformation to the court for sentencing consideration. Defendant had been incarceratedsince 2005 and the prior reports contained sufficient history and background informationfor sentencing consideration (see CPL 390.30 [1]). Further, County Court'sfailure to obtain a fully updated report does not require remittal for resentencing asdefendant received the promised sentence, which was the minimum [*2]permissible sentence (see Penal Law§§ 70.02 [1] [c]; 70.04 [1] [a]; [3] [c]), and remitting for thepreparation of an updated report would be "futile and pointless" (People vBouyea, 64 NY2d 1140, 1142 [1985]). As any error was harmless, we discern noreason to take corrective action in the interest of justice (see People v Sears, 209AD2d at 885).
Garry, P.J., Egan Jr., Lynch, Devine and Aarons, JJ., concur. Ordered that thejudgment is affirmed.