Opinion
2013-03-22
The PEOPLE of the State of New York, Respondent, v. Matthew M. COBADO, Defendant–Appellant.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Elizabeth Ensell of Counsel), for Respondent.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Elizabeth Ensell of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a resentence pursuant to which County Court added various terms of postrelease supervision (PRS) to the sentence previously imposed in 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 second degree (§ 265.03[2] ). Defendant failed to preserve for our review his contention that the court erred in resentencing him without ordering an updated presentence report in accordance with CPL 390.20 ( see People v. Lard, 71 A.D.3d 1464, 1465, 898 N.Y.S.2d 390,lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012). In any event, that contention lacks merit. “Where, as here, [the] defendant has been continually incarcerated between the time of the initial sentencing and resentencing, to require an update ... does not advance the purpose of CPL 390.20(1)” ( id. [internal quotation marks omitted]; see People v. Kuey, 83 N.Y.2d 278, 282–283, 609 N.Y.S.2d 568, 631 N.E.2d 574;People v. James, 4 A.D.3d 774, 775, 772 N.Y.S.2d 151).
We reject defendant's further contention that he was deprived of effective assistance of counsel at resentencing ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Although defense counsel did not say anything on the record on defendant's behalf, the court ultimately imposed the minimum authorized term of PRS for the rape convictions ( seePenal Law § 70.45[2–a][c] ), and an equal term of PRS for the weapons offense.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.