Opinion
622 KA 21-00804
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Reggie CASWELL, Defendant-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT. REGGIE CASWELL, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT.
REGGIE CASWELL, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted of, inter alia, attempted robbery in the third degree ( Penal Law §§ 110.00, 160.05 ), and he now appeals from a resentence with respect to that count. He contends in his main brief that he was improperly resentenced as a second felony offender because he was neither personally served with a copy of the second felony offender statement that the People filed with Supreme Court and provided to defense counsel nor arraigned on it before the court imposed the resentence. We reject that contention and conclude that "strict compliance with [ CPL 400.21 ] was not required inasmuch as defendant received reasonable notice of the accusations against him and was provided an opportunity to be heard with respect to those accusations during the [resentencing] proceeding" ( People v. Gonzalez , 61 A.D.3d 1428, 1429, 877 N.Y.S.2d 770 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). Thus, "any technical failure to comply with the procedure set out in CPL 400.21 ‘was harmless, and [remitting] for [personal service of the second felony offender statement] and resentencing would be futile and pointless’ " ( People v. Terborg , 195 A.D.3d 1605, 1606, 145 N.Y.S.3d 887 [4th Dept. 2021], lv denied 37 N.Y.3d 995, 152 N.Y.S.3d 402, 174 N.E.3d 342 [2021], quoting People v. Bouyea , 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985] ).
We reject defendant's further contention in his main brief that the court erred by failing to order a new presentence report or to make a record of having reviewed any prior presentence report before it resentenced him. As an initial matter, any such contention is unpreserved for our review inasmuch as defendant did not request an updated presentence report, object to the lack of any mention of a presentence report, updated or otherwise, at the resentencing, or move to vacate the resentencing on any ground relating to the lack of a presentence report (see generally People v. Pinet , 201 A.D.3d 1370, 1371, 160 N.Y.S.3d 521 [4th Dept. 2022], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 452, 185 N.E.3d 973 [2022] ; People v. Griffin , 120 A.D.3d 1529, 1530, 993 N.Y.S.2d 198 [4th Dept. 2014] ). In any event, we conclude that the court did not abuse its discretion in failing to order an updated presentence report pursuant to CPL 390.20 (1) before resentencing defendant. "The decision whether to obtain an updated report at resentencing is a matter resting in the sound discretion of the sentencing [j]udge" ( People v. Kuey , 83 N.Y.2d 278, 282, 609 N.Y.S.2d 568, 631 N.E.2d 574 [1994] ; see People v. Woods , 122 A.D.3d 1400, 1401, 997 N.Y.S.2d 570 [4th Dept. 2014], lv denied 25 N.Y.3d 1210, 16 N.Y.S.3d 532, 37 N.E.3d 1175 [2015] ; People v. Lard , 71 A.D.3d 1464, 1465, 898 N.Y.S.2d 390 [4th Dept. 2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010] ). As we have repeatedly recognized, "[w]here as here, [the] defendant has been continually incarcerated between the time of the initial sentencing and resentencing, to require an update ... does not advance the purpose of CPL 390.20 (1)" ( Lard , 71 A.D.3d at 1465, 898 N.Y.S.2d 390 [internal quotation marks omitted]; see People v. Rajab , 133 A.D.3d 1241, 1241, 20 N.Y.S.3d 772 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ). We further conclude that the court did not err in imposing the resentence without making a record that it had reviewed any prior presentence report. "[I]t is well established that the mere absence of any reference to the presentence report at sentencing is insufficient to rebut the presumption of regularity accorded to judicial proceedings" ( Pinet , 201 A.D.3d at 1371, 160 N.Y.S.3d 521 [internal quotation marks omitted]; see People v. Whilby , 188 A.D.3d 425, 426, 133 N.Y.S.3d 263 [1st Dept. 2020], lv denied 36 N.Y.3d 1060, 141 N.Y.S.3d 753, 165 N.E.3d 679 [2021] ).
Moreover, we reject defendant's contention in his pro se supplemental brief that the court improperly denied him a hearing to challenge his second felony offender status. Defendant was previously adjudicated to be a predicate felon, a finding that we affirmed on appeal ( People v. Caswell , 56 A.D.3d 1300, 1304, 867 N.Y.S.2d 638 [4th Dept. 2008], lv denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442 [2009], reconsideration denied 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009], cert denied 556 U.S. 1286, 129 S.Ct. 2775, 174 L.Ed.2d 278 [2009] ) and that is binding on defendant here (see CPL 400.21 [8] ; People v. Grimes , 196 A.D.3d 1088, 1090, 151 N.Y.S.3d 580 [4th Dept. 2021], lv denied 37 N.Y.3d 1059, 154 N.Y.S.3d 633, 176 N.E.3d 669 [2021] ; People v. Christian , 229 A.D.2d 991, 991, 645 N.Y.S.2d 206 [4th Dept. 1996], lv denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246 [1996], cert denied 543 U.S. 841, 125 S.Ct. 257, 160 L.Ed.2d 65 [2004] ).
Defendant's remaining contentions in his pro se supplemental brief are not properly before us. To the extent that defendant seeks to challenge his original sentence, any such contention is not properly before us inasmuch as "a defendant who appeals from a resentence only may not challenge the underlying judgment" ( People v. Nelson , 195 A.D.3d 1442, 1443, 145 N.Y.S.3d 500 [4th Dept. 2021] ; see generally CPL 450.30 [3] ; People v. Bradford , 138 A.D.3d 1436, 1437, 29 N.Y.S.3d 729 [4th Dept. 2016], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ; People v. Smith , 21 A.D.3d 1360, 1360, 801 N.Y.S.2d 218 [4th Dept. 2005], lv denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 [2005] ). Furthermore, defendant's contentions with respect to his motion pursuant to CPL 440.20 are not properly before us on appeal from the resentence, and defendant failed to obtain leave to appeal from the order deciding that motion (see People v. Loiz , 175 A.D.3d 872, 873, 107 N.Y.S.3d 527 [4th Dept. 2019] ; People v. Moore , 81 A.D.3d 1325, 1325, 916 N.Y.S.2d 569 [4th Dept. 2011], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011] ).