PEOPLE v. PELCZYNSKI

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Daniel W. PELCZYNSKI, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Joseph T. Jarzembek, Buffalo, for Defendant-Appellant. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

 Defendant was convicted upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65[3] ), and he now appeals from the resentence upon that conviction.  “Because the resentence occurred more than 30 days after the original sentence and there was no timely notice of appeal from the original judgment of conviction, any contentions of defendant with respect to the original judgment of conviction are not properly before us on this appeal” (People v. Lard, 23 A.D.3d 1033, 803 N.Y.S.2d 458, lv. denied 6 N.Y.3d 752, 755, 810 N.Y.S.2d 420, 423, 843 N.E.2d 1160, 1163, 6 N.Y.3d 808, 815, 812 N.Y.S.2d 448, 454, 845 N.E.2d 1279, 1285;  see CPL 450.30[3];  People v. Coble, 17 A.D.3d 1165, 794 N.Y.S.2d 549, lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 807, 835 N.E.2d 667).   By failing to object to the resentencing or to move to withdraw his guilty plea or to vacate the judgment of conviction based upon the resentencing, defendant failed to preserve for our review his contention concerning the resentencing (see People v. Alford, 272 A.D.2d 901, 707 N.Y.S.2d 919, lv. denied 96 N.Y.2d 780, 725 N.Y.S.2d 644, 749 N.E.2d 213;  see also People v. Matthews, 306 A.D.2d 863, 763 N.Y.S.2d 385).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: