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

1267
KA 09-01350
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES ROGERS, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Niagara County Court (Sara S.
Sperrazza, J.), rendered March 18, 2009. Defendant was resentenced
upon his conviction of robbery in the first degree.

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

     Memorandum: Defendant appeals from a resentence imposed upon
remittal of this matter to County Court. On defendant’s first appeal
in this matter, we reversed the judgment convicting him after a jury
trial of murder in the second degree (Penal Law § 125.25 [3]) and
robbery in the first degree (§ 160.15 [1]), and we granted him a new
trial on the counts of the indictment charging him with those crimes
(People v Rogers, 16 AD3d 1101). On appeal from the judgment
convicting defendant of robbery in the first degree following the
retrial, we vacated the sentence on the ground that it was
presumptively vindictive, and we remitted the matter to County Court
for resentencing (People v Rogers, 56 AD3d 1173, lv denied 12 NY3d
787). Upon remittal, the court resentenced defendant to a determinate
term of imprisonment of 20 years and to five years of postrelease
supervision.

     Contrary to defendant’s contention, the resentence is not
vindictive. As we stated in our decision with respect to defendant’s
second appeal in this matter, “ ‘[t]he threshold issue in evaluating
whether a resentence is vindictive is whether the resentence is more
severe than that originally imposed’ ” (id. at 1174; see generally
People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People
v Van Pelt, 76 NY2d 156, 159-161). Here, defendant’s resentence is
identical to the sentence originally imposed, and thus the presumption
of vindictiveness does not arise.
                                 -2-                          1267
                                                         KA 09-01350

     We reject the further contention of defendant that the court
erred in resentencing him without ordering an updated presentence
report. “[T]he decision whether to obtain an updated [presentence]
report at resentencing is a matter resting in the sound discretion of
the sentencing [court]” (People v Kuey, 83 NY2d 278, 282). Here, the
court did not abuse its discretion in failing to order an updated
report inasmuch as defendant had been incarcerated since the original
sentence was imposed (see People v Brinson, 298 AD2d 870, lv denied 99
NY2d 533), and defendant presented favorable information concerning
his behavior while incarcerated. Finally, the sentence is not unduly
harsh or severe.




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
