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

1214
KA 11-02493
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                 MEMORANDUM AND ORDER

DAVID M. CONDES, DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Cayuga County Court (Thomas G.
Leone, J.), rendered September 1, 2011. Defendant was resentenced upon
his conviction of unlawful imprisonment in the second degree, rape in
the first degree (four counts), criminal sexual act in the first degree
(three counts), attempted assault in the second degree, unlawful
imprisonment in the first degree, aggravated sexual abuse in the first
degree (two counts), assault in the third degree, and attempted
aggravated sexual abuse in the first degree.

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

     Memorandum: Defendant was convicted upon his plea of guilty of,
inter alia, four counts of rape in the first degree (Penal Law § 130.35
[1]), and he appeals from a resentence on those convictions. At
resentencing, County Court imposed defendant’s original prison sentence
without imposing a period of postrelease supervision, in accordance with
Penal Law § 70.85. Defendant contends that the resentence constitutes
cruel and unusual punishment. Where, as here, defendant appeals from a
resentence conducted to address an error in failing to impose a period
of postrelease supervision, this Court is without authority to reduce
the period of incarceration imposed (see People v Lingle, 16 NY3d 621,
635; People v Howard, 96 AD3d 1701, 1702).




Entered:   November 16, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
