PEOPLE v. JOHNSTON (2006)

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered October 18, 2004, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

In October 2003, following the shooting death of his cousin, defendant and three others went to the home of a man who was believed to have been present at the time of the shooting.   When they arrived, they entered the home, struck the man and took firearms.   In December 2003, defendant was charged in an indictment with burglary in the first degree, robbery in the first degree and grand larceny in the fourth degree.   At his arraignment, he requested a preplea investigation report, which was prepared in February 2004.   He subsequently pleaded guilty to robbery in the second degree in satisfaction of all charges and in exchange for a sentence of eight years in prison to be followed by five years of postrelease supervision.   In October 2004, he was sentenced in accordance with the plea agreement and he now appeals.

Defendant argues that the sentence must be vacated because County Court failed to obtain a presentence investigation report in accordance with CPL 390.20 prior to sentencing.   Although the report prepared in February 2004 is entitled a preplea investigation report, it contains all of requirements of a presentence investigation report (see CPL 390.30;  People v. Goodings, 277 A.D.2d 725, 726, 716 N.Y.S.2d 481 [2000], lv. denied 96 N.Y.2d 735, 722 N.Y.S.2d 801, 745 N.E.2d 1024 [2001] ) and was prepared prior to sentencing.   Inasmuch as defendant never requested an updated report before sentence was imposed or moved to vacate the sentence on this basis, he has waived any challenge to the report (see People v. Drew, 16 A.D.3d 840, 841, 792 N.Y.S.2d 639 [2005] ).   Furthermore, irrespective of the sentences received by his codefendants, we do not find that extraordinary circumstances exist warranting a reduction of the sentence imposed upon defendant (see People v. Montgomery, 21 A.D.3d 1148, 1149, 800 N.Y.S.2d 784 [2005], lv. denied 5 N.Y.3d 855, 806 N.Y.S.2d 175, 840 N.E.2d 144 [2005] ).

ORDERED that the judgment is affirmed.