Opinion
2016-11450 Ind. No. 96-00424
11-06-2019
The PEOPLE, etc., Respondent, v. Sixto ACOSTA, also known as Hector Acosta, Appellant.
Thomas R. Villecco, Jericho, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Wlliam C. Milaccio of counsel), for respondent.
Thomas R. Villecco, Jericho, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Wlliam C. Milaccio of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a resentence of the Supreme Court, Westchester County (Barry E. Warhit, J.), imposed September 7, 2016, upon his convictions of robbery in the first degree (two counts), robbery in the second degree (three counts), assault in the second degree (two counts), and grand larceny in the fourth degree (three counts), upon a jury verdict.
ORDERED that the resentence is affirmed.
The defendant's contention that the original sentence imposed upon him improperly penalized him for exercising his right to a trial may not be reviewed on this appeal from the resentence only (see CPL 450.30[3] ; People v. Robinson, 160 A.D.3d 774, 776, 75 N.Y.S.3d 199 ). Moreover, any issues as to the original sentence are academic, as that sentence was vacated and the defendant was resentenced on September 7, 2016 (see People v. Robinson, 160 A.D.3d at 776, 75 N.Y.S.3d 199 ).
The defendant's contention that the resentence improperly penalized him for exercising his right to a trial is unpreserved for appellate review since he did not set forth the issue on the record at the time of resentencing (see People v. Hargroves, 27 A.D.3d 765, 765–766, 815 N.Y.S.2d 605 ). In any event, the contention is without merit (see People v. Durkin, 132 A.D.2d 668, 518 N.Y.S.2d 38 ; People v. Hargroves, 27 A.D.3d 765, 815 N.Y.S.2d 605 ; see also People v. Martinez, 289 A.D.2d 259, 259–260, 734 N.Y.S.2d 474 ). Moreover, the resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 88–89, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur.