        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1183
KA 11-02176
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARIO WOODS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Onondaga County Court (Anthony F.
Aloi, J.), rendered August 26, 2011. Defendant was resentenced upon
his conviction of burglary in the first degree (two counts), attempted
robbery in the first degree and criminal possession of a weapon in the
second degree.

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

     Memorandum: Defendant was convicted following a jury trial of
two counts of attempted murder in the first degree (Penal Law §§
110.00, 125.27 [1] [a] [i]), two counts of burglary in the first
degree (§ 140.30 [1], [2]), attempted robbery in the first degree (§§
110.00, 160.15 [2]), criminal possession of a weapon in the second
degree (§ 265.03), and resisting arrest (§ 205.30), and he now appeals
from a resentence with respect to that conviction. County Court
originally sentenced defendant to, inter alia, concurrent determinate
terms of 10 years’ imprisonment for the counts of burglary, attempted
robbery, and criminal possession of a weapon, and we affirmed the
judgment of conviction (People v Woods, 284 AD2d 995, lv denied 96
NY2d 926). The sentencing court failed, however, to impose periods of
postrelease supervision as required by Penal Law § 70.45 (1). To
remedy that Sparber error (see Correction Law § 601-d; People v
Sparber, 10 NY3d 457, 465), the court resentenced defendant prior to
the completion of his sentence to the same terms of imprisonment and
imposed the requisite periods of postrelease supervision (see Penal
Law § 70.45 [1]).

     We reject defendant’s contention that the court abused its
discretion when it imposed the periods of postrelease supervision. In
the absence of the People’s consent, the court was required to impose
the mandatory periods of postrelease supervision (see Penal Law §
                                 -2-                          1183
                                                         KA 11-02176

70.85; People v Williams, 14 NY3d 198, 213, cert denied ___ US ___,
131 S Ct 125; People v Wright, 85 AD3d 1316, 1316).

     Defendant failed to preserve for our review his contention that
the court abused its discretion in failing to order an updated
presentence report prior to resentencing. The record demonstrates
that “[d]efendant did not request that the court order an updated
presentence report or otherwise object to sentencing in the absence of
such a report” (People v Stachnik, 101 AD3d 1590, 1592, lv denied 20
NY3d 1104; see People v Lard, 71 AD3d 1464, 1465, lv denied 14 NY3d
889). In any event, defendant’s contention is without merit because
“the decision whether to obtain an updated report at resentencing is a
matter resting in the sound discretion of the sentencing Judge”
(People v Kuey, 83 NY2d 278, 282).

     Defendant also failed to preserve for our review his contentions
that his due process rights were violated, i.e., that he did not
receive notice that he was a “designated person” under Correction Law
§ 601-d (1), and that there was an “unreasonable delay” between his
original sentencing and the resentencing (CPL 380.80 [1]; see
generally People v Smikle, 112 AD3d 1357, 1358, lv denied 22 NY3d
1141). We decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (see CPL 470.15
[3] [c]).

     Finally, defendant’s contention that he was denied effective
assistance of counsel is unreviewable to the extent that it involves
matters outside the record (see generally People v Robinson, 221 AD2d
1029, 1029). To the extent that the record permits review of his
claims of ineffective assistance of counsel, we conclude that they are
without merit (see generally People v Caban, 5 NY3d 143, 152; People v
Baldi, 54 NY2d 137, 147). It is well settled that the “failure to
make a motion or [an objection] that has little or no chance of
success . . . is not ineffective” (People v Dashnaw, 37 AD3d 860, 863,
lv denied 8 NY3d 945 [internal quotation marks omitted]), and
defendant otherwise has failed to show the absence of strategic or
other legitimate explanations for defense counsel’s alleged
shortcomings (see generally People v Benevento, 91 NY2d 708, 712).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
