Opinion
KA 17–00656 1212
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Shaun ROGERS, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN, LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN, LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree (Penal Law
§ 130.50 [4] ), defendant contends that Supreme Court erred in refusing to rule on his request to strike improper material from the presentence report (PSR). Contrary to the People's contention, we conclude that the issue is preserved for our review (cf. People v. Richardson, 142 A.D.3d 1318, 1319, 38 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Sumpter, 286 A.D.2d 450, 452, 729 N.Y.S.2d 506 [2d Dept. 2001], lv denied 97 N.Y.2d 658, 737 N.Y.S.2d 60, 762 N.E.2d 938 [2001] ). We further conclude, however, that there is no basis to disturb the judgment. The sentencing court not only afforded defendant ample opportunity to address the purported inaccuracies in the PSR (see People v. Harris, 121 A.D.3d 1423, 1424, 995 N.Y.S.2d 410 [3d Dept. 2014], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ; cf. People v. James, 114 A.D.3d 1312, 1312, 980 N.Y.S.2d 698 [4th Dept. 2014] ) but, in addition, the court appended to the PSR documents submitted by defendant that were relevant to sentencing. Moreover, the court stated that it was not relying on the challenged statements in the PSR when it sentenced defendant in accordance with the plea agreement (see People v. Russell, 133 A.D.3d 1199, 1200, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] ; People v. Serrano, 81 A.D.3d 753, 754, 916 N.Y.S.2d 509 [2d Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011] ), and thus defendant was not prejudiced by the inclusion of those statements (see People v. Redman, 148 A.D.2d 966, 967, 539 N.Y.S.2d 203 [4th Dept. 1989], lv denied 74 N.Y.2d 745, 545 N.Y.S.2d 120, 543 N.E.2d 763 [1989] ). "To the extent that those statements could cause any prejudice to the defendant subsequent to the sentencing proceeding, the relief granted in response to his [request] was sufficient to prevent such prejudice" ( Serrano, 81 A.D.3d at 754, 916 N.Y.S.2d 509 ).
Defendant correctly contends that he had a right to be notified no less than seven days prior to sentencing that the victim's father intended to make a statement at sentencing (see CPL 380.50[2][b] ), and it is undisputed that defendant was not so notified. We conclude that "[t]he error [is] harmless, however, since the oral statement was not so inflammatory that it rendered the sentencing flawed" ( People v. Branshaw, 177 A.D.2d 1028, 1028, 578 N.Y.S.2d 45 [4th Dept. 1991], lv denied 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206 [1992] ; see also People v. Croskery [appeal No. 1], 210 A.D.2d 872, 872, 621 N.Y.S.2d 983 [4th Dept. 1994], lv denied 85 N.Y.2d 907, 627 N.Y.S.2d 330, 650 N.E.2d 1332 [1995] ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.