Opinion
KA 04-02570.
September 30, 2005.
Appeal from a resentence of the Orleans County Court (James P. Punch, J.), rendered August 9, 2004. Defendant was resentenced upon his conviction of assault in the first degree and criminal possession of a weapon in the fourth degree.
CHARLES T. NOCE, ROCHESTER, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE K. BOGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Scudder, Smith, Pine and Hayes, JJ.
It is hereby ordered that the resentence so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant previously appealed from a judgment convicting him, upon his plea of guilty, of, inter alia, assault in the first degree (Penal Law § 120.10) for stabbing his wife. His sole contention in the prior appeal was that County Court erred in failing to set forth its reasons for excepting the statement by the victim from the presentence report, as required by CPL 390.50 (2) (a), and we agreed with defendant ( People v. Smith, 8 AD3d 1043). We therefore modified the judgment by vacating the sentence, and we remitted the matter to County Court for resentencing, "at which time the court shall either disclose the victim's statement to defendant, or set forth its reasons for exercising its discretion not to disclose the statement" ( id. at 1044). The present contentions of defendant that he was denied effective assistance of counsel with respect to his plea and the original sentence are not reviewable on this appeal from the resentence ( see People v. Luddington, 5 AD3d 1042, lv denied 3 NY3d 643; see generally CPL 450.30; People v. Ferrin, 197 AD2d 882, lv denied 82 NY2d 849). We reject defendant's challenge to the severity of the resentence, and note that the resentence is of shorter duration than the original sentence.