Opinion
625 KA 22-00598
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Matthew BRENNAN, Defendant-Appellant.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [4] ) and endangering the welfare of a child (§ 260.10 [1]). Defendant's contention that County Court abused its discretion or otherwise erred in sentencing him because the presentence report was incomplete and inadequate is not preserved for our review (see generally People v. Rodriguez , 199 A.D.3d 1458, 1459, 154 N.Y.S.3d 609 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 712, 181 N.E.3d 1140 [2022] ; People v. Morrow , 167 A.D.3d 1516, 1517-1518, 90 N.Y.S.3d 436 [4th Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 154, 123 N.E.3d 813 [2019] ). We reject defendant's related contention that he received ineffective assistance of counsel at sentencing inasmuch as defendant has not established that the sentence imposed was based upon the lack of information (see People v. Vaughan , 20 A.D.3d 940, 941-942, 798 N.Y.S.2d 289 [4th Dept. 2005], lv denied 5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146 [2005] ; see generally Rodriguez , 199 A.D.3d at 1459, 154 N.Y.S.3d 609 ). To the extent that defendant's contention involves matters outside the record, "a CPL 440.10 proceeding is the appropriate forum for review of the ... claim" ( People v. Barzee , 204 A.D.3d 1422, 1423, 166 N.Y.S.3d 814 [4th Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 865, 193 N.E.3d 530 [2022] [internal quotation marks omitted]; see People v. Jones , 214 A.D.3d 1410, 1411, 183 N.Y.S.3d 927 [4th Dept. 2023] ).
We perceive no basis in the record for us to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).