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

844
KA 11-01824
PRESENT: SCUDDER, P.J., SMITH, CENTRA, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STANLEY L. HOWARD, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


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 June 30, 2011. Defendant was resentenced upon
his conviction of criminal possession of a controlled substance in the
fifth degree and assault in the second degree.

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

     Memorandum: Defendant was convicted upon his plea of guilty of
criminal possession of a controlled substance in the fifth degree
(Penal Law § 220.06 [5]) and assault in the second degree (§ 120.05
[7]), and he appeals from a resentence on those convictions. County
Court (Corning, J.) originally sentenced defendant as a second felony
offender to an indeterminate term of imprisonment on the conviction of
criminal possession of a controlled substance and a determinate term
of imprisonment of five years on the conviction of assault, but it
failed to impose a period of postrelease supervision (PRS) on the
determinate sentence as required by Penal Law § 70.45 (1). County
Court (Leone, J.), with the People’s consent, thereafter resentenced
defendant to the same terms of imprisonment previously imposed,
without adding a term of PRS (see § 70.85; see also Correction Law §
601-d).

     To the extent that defendant challenges the severity of his
resentence, that challenge is beyond the scope of our review. Where,
as here, the resentence is conducted for the purpose of rectifying a
Sparber error—that is, an error in failing to impose a required period
of PRS (see People v Sparber, 10 NY3d 457, 464-465)—“[t]he defendant’s
right to appeal is limited to the correction of errors or the abuse of
discretion at the resentencing proceeding,” and this Court “may not
reduce the [defendant’s] prison sentence on appeal in the interest of
                                 -2-                           844
                                                         KA 11-01824

justice” (People v Lingle, 16 NY3d 621, 635; see People v Covington,
88 AD3d 486, 486-487, lv denied 18 NY3d 858).

     Defendant failed to preserve for our review his contention that,
at resentencing, the People were required to re-prove his status as a
second felony offender and the court (Leone, J.) was required to re-
adjudicate him as such (see generally CPL 470.05 [2]). In any event,
that contention lacks merit. At defendant’s original sentencing, the
People and the court (Corning, J.) complied with the requirements of
CPL 400.21, and defendant admitted his status as a second felony
offender. Thus, we conclude that there was “substantial compliance”
with CPL 400.21 at resentencing despite the court’s failure to
adjudicate defendant a second felony offender again (People v Mateo,
53 AD3d 1111, 1112, lv denied 11 NY3d 791).

     We have reviewed defendant’s remaining contention and conclude
that it does not require reversal or modification of the resentence.




Entered:   June 29, 2012                        Frances E. Cafarell
                                                Clerk of the Court
