PEOPLE v. HABBERFIELD (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.

Memorandum: In appeal No. 2, defendant appeals from a judgment convicting her upon her plea of guilty of assault in the second degree (Penal Law § 120.05 [7]) and, in appeal No. 1, she appeals from the resentence on that conviction. We note at the outset that, inasmuch as the sentence in appeal No. 2 was superseded by the resentence in appeal No. 1, the appeal from the judgment in appeal No. 2 insofar as it imposed sentence must be dismissed (see People v. Weathington [Appeal No. 2], 141 A.D.3d 1173, 1173, 34 N.Y.S.3d 859 [4th Dept. 2016], lv denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016]; People v. Primm, 57 A.D.3d 1525, 1525, 870 N.Y.S.2d 188 [4th Dept. 2008], lv denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009]). We otherwise affirm the judgment in appeal No. 2 and affirm the resentence in appeal No. 1.

In appeal No. 2, defendant contends that her plea was not knowingly, voluntarily, or intelligently entered. We conclude that defendant “ ‘failed to preserve that contention for our review by moving to withdraw [the] plea or to vacate the judgment of conviction’ ” (People v. Wilkes, 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018]; see People v. Trinidad, 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876 [4th Dept. 2005], lv denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 [2005]). This case does not fall within the “rare exception to the preservation rule” (Trinidad, 23 A.D.3d at 1061, 804 N.Y.S.2d 876; see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).

We reject defendant's contention in appeal No. 1 that County Court should have held a hearing to address certain alleged errors in the presentence report. Although defendant “object[ed] to several of th[o]se errors at sentencing,” because she did not specifically request a hearing, that issue is unpreserved for our review (People v. Elmore, 175 A.D.3d 1003, 1006, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020]; see People v. Russell, 133 A.D.3d 1199, 1200, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016]). In any event, defendant's contention is without merit because there is nothing in the record to establish that the court relied on any of the alleged errors in imposing sentence (see People v. Ferguson, 177 A.D.3d 1247, 1250, 112 N.Y.S.3d 368 [4th Dept. 2019]; Elmore, 175 A.D.3d at 1006, 107 N.Y.S.3d 252).

Finally, in appeal No. 1, we conclude that the resentence is not unduly harsh or severe.