Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Willis KNIGHT, Jr., Defendant-appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:On appeal from a resentence following his conviction upon a plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that County Court erred in resentencing him as a second violent felony offender and that the resentence is unduly harsh and severe. We reject those contentions. We note at the outset that the posthearing loss of the exhibits that were submitted at the predicate felony hearing, including the certificate of conviction from the predicate felony offense, does not deprive defendant of his right to appellate review of these issues. At the hearing, defense counsel did not object to the admission in evidence of the certificate of conviction, and there is no dispute that the certificate of conviction bore defendant's name and date of birth and was therefore "sufficient to establish that defendant was previously convicted of [the predicate] crime" (People v. Switzer, 55 A.D.3d 1394, 1395, 865 N.Y.S.2d 457, lv. denied 11 N.Y.3d 858, 872 N.Y.S.2d 81, 900 N.E.2d 564 ; see People v. Rattelade, 226 A.D.2d 1107, 1107–1108, 642 N.Y.S.2d 1, lv. denied 88 N.Y.2d 992, 649 N.Y.S.2d 399, 672 N.E.2d 625 ). Inasmuch as "the information in the missing [certificate of conviction] can be gleaned from the record and there is no dispute with respect to the accuracy of that information," we conclude that there is sufficient information to allow for effective appellate review of defendant's contention (People v. Jackson, 11 A.D.3d 928, 930, 784 N.Y.S.2d 758, lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979 ; see generally People v. Yavru–Sakuk, 98 N.Y.2d 56, 60, 745 N.Y.S.2d 787, 772 N.E.2d 1145 ). Based on the record, we conclude that the People established beyond a reasonable doubt that defendant was a second violent felony offender (see People v. Kinnear, 78 A.D.3d 1593, 1594, 910 N.Y.S.2d 731 ). We further conclude that the resentence is not unduly harsh or severe.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.