Opinion
2021–03277 Ind. No. 722/97
08-16-2023
The PEOPLE, etc., respondent, v. Robert SAUNDERS, appellant.
Richard L. Herzfeld, New York, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
Richard L. Herzfeld, New York, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a resentence of the County Court, Orange County (Hyun Chin Kim, J.), imposed April 22, 2021, upon the granting of that branch of his motion which was pursuant to CPL 440.20 to set aside a sentence of the same court (Pano Z. Patsalos, J.) imposed December 2, 1998, upon his convictions of murder in the first degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict.
ORDERED that the resentence is affirmed.
The defendant's contention that the County Court improperly resentenced him without obtaining an updated presentence report is unpreserved for appellate review (see CPL 470.05[2] ; People v. Camino, 105 A.D.3d 1055, 1055, 963 N.Y.S.2d 591 ; People v. McGinn, 96 A.D.3d 977, 977, 946 N.Y.S.2d 489 ), and, in any event, without merit (see People v. Kuey, 83 N.Y.2d 278, 282, 609 N.Y.S.2d 568, 631 N.E.2d 574 ; People v. McGhee, 111 A.D.3d 961, 961, 975 N.Y.S.2d 680 ; People v. Watkins, 71 A.D.3d 799, 799, 895 N.Y.S.2d 749 ).
The defendant's contention that his resentence should be vacated because the County Court did not afford him an opportunity to make a statement with respect to the resentence on his own behalf in violation of CPL 380.50(1), is also unpreserved for appellate review (see People v. Crosby, 133 A.D.3d 681, 682, 20 N.Y.S.3d 100 ; People v. Camino, 105 A.D.3d at 1056, 963 N.Y.S.2d 591 ), and, in any event, without merit, as the court substantially complied with the requirements of CPL 380.50 (see People v. McClain, 35 N.Y.2d 483, 491–492, 364 N.Y.S.2d 143, 323 N.E.2d 685 ; People v. Desius, 188 A.D.3d 1626, 1629, 135 N.Y.S.3d 214 ; People v. Crosby, 133 A.D.3d at 682, 20 N.Y.S.3d 100 ).
The defendant's contention that the sentence is excessive may not be raised on appeal from a resentence pursuant to CPL 440.20 (see People v. Chambers, 200 A.D.3d 944, 944, 158 N.Y.S.3d 250 ; People v. Chacko, 119 A.D.3d 955, 956, 989 N.Y.S.2d 890 ; see also People v. Lingle, 16 N.Y.3d 621, 635, 926 N.Y.S.2d 4, 949 N.E.2d 952 ).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach it in the exercise of our interest of justice jurisdiction.
BRATHWAITE NELSON, J.P., MALTESE, FORD and WARHIT, JJ., concur.