PEOPLE v. GARCIA (2023)

DECISION & ORDER

Appeal by the defendant from a second resentence of the Supreme Court, Kings County (Donald Leo, J.), imposed February 1, 2022, upon his convictions of attempted murder in the second degree and robbery in the first degree (nine counts), upon jury verdicts, after remittitur from this Court for resentencing (see People v. Garcia, 196 A.D.3d 700, 150 N.Y.S.3d 329).

ORDERED that the second resentence is affirmed.

On October 29, 2019, the Supreme Court resentenced the defendant upon the People's consent.  By decision and order dated July 28, 2021, this Court reversed the resentence and remitted the matter to the Supreme Court, Kings County, for a second resentencing in accordance therewith (see People v. Garcia, 196 A.D.3d 700, 150 N.Y.S.3d 329).  The Supreme Court then resentenced the defendant for a second time.  The defendant appeals.

The defendant's contention that the Supreme Court committed reversible error because he was not personally provided with a copy of the updated presentence investigation report to review pursuant to CPL 390.50, is unpreserved for appellate review (see CPL 470.05[2];  People v. Camino, 105 A.D.3d 1055, 1055, 963 N.Y.S.2d 591).  In any event, the court complied with CPL 390.50(2)(a) by ensuring that defense counsel was provided with the updated presentence investigation report.

The defendant's contention that, in imposing the second resentence, the Supreme Court penalized him for exercising his right to a trial is unpreserved for appellate review (see id. § 470.05[2];  People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Perdomo, 154 A.D.3d 886, 64 N.Y.S.3d 47).  In any event, the record does not reflect that the court exercised any retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v. Hunter, 151 A.D.3d 1077, 54 N.Y.S.3d 866;  People v. Seymore, 106 A.D.3d 1033, 1034, 964 N.Y.S.2d 668).

The defendant's contention that he was deprived of the effective assistance of counsel during the second resentence proceedings is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;  see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

The second resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

IANNACCI, J.P., WOOTEN, VOUTSINAS and WAN, JJ., concur.