Opinion
11-09-2017
The PEOPLE of the State of New York, Respondent, v. Tommy BRINSON, Defendant–Appellant.
Robert A. Dinieri, Clyde, for Defendant–Appellant. Christopher Bokelman, Acting District Attorney, Lyons (Timothy G. Chapman of Counsel), for Respondent.
Robert A. Dinieri, Clyde, for Defendant–Appellant.
Christopher Bokelman, Acting District Attorney, Lyons (Timothy G. Chapman of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of two counts each of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree ( § 220.16[1] ). Defendant failed to preserve for our review his contention that County Court erred in considering improper factors in sentencing him (see People v. Garson, 69 A.D.3d 650, 652, 892 N.Y.S.2d 511 [2d Dept.2010], lv. denied and dismissed 15 N.Y.3d 750, 906 N.Y.S.2d 823, 933 N.E.2d 222 [2010] ), and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Furthermore, defendant waived his contention that the court erred in sentencing him in the absence of an updated presentence report (see People v. Willie T.J., 101 A.D.3d 1626, 1627, 955 N.Y.S.2d 782 [4th Dept.2012], lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ). A preplea investigation report had been prepared within the preceding 12 months, and defendant explicitly waived the preparation of an updated presentence report (see CPL 390.20[4][a] [iii] ; People v. Servey, 96 A.D.3d 1428, 1429, 945 N.Y.S.2d 884 [4th Dept.2012], lv. denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 [2012] ).
We reject defendant's challenge to the severity of the sentence. We note, however, that the certificate of conviction incorrectly reflects that the sentences imposed on all counts are to run concurrently with each other, and must therefore be amended to reflect that the sentences imposed on counts three and four are to run concurrently with each other and consecutively to the sentences imposed on counts one and two (see People v. Mosley, 55 A.D.3d 1371, 1372, 864 N.Y.S.2d 622 [4th Dept.2008], lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562 [2008] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.