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

1250
KA 13-01951
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIS KNIGHT, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Monroe County Court (John Lewis
DeMarco, J.), rendered September 6, 2013. Defendant was resentenced
following his conviction, upon a plea of guilty, of burglary in the
second degree.

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

     Memorandum: On appeal from a resentence following his conviction
upon a plea of guilty of burglary in the second degree (Penal Law
§ 140.25 [2]), defendant contends that County Court erred in
resentencing him as a second violent felony offender and that the
resentence is unduly harsh and severe. We reject those contentions.
We note at the outset that the posthearing loss of the exhibits that
were submitted at the predicate felony hearing, including the
certificate of conviction from the predicate felony offense, does not
deprive defendant of his right to appellate review of these issues.
At the hearing, defense counsel did not object to the admission in
evidence of the certificate of conviction, and there is no dispute
that the certificate of conviction bore defendant’s name and date of
birth and was therefore “sufficient to establish that defendant was
previously convicted of [the predicate] crime” (People v Switzer, 55
AD3d 1394, 1395, lv denied 11 NY3d 858; see People v Rattelade, 226
AD2d 1107, 1107-1108, lv denied 88 NY2d 992). Inasmuch as “the
information in the missing [certificate of conviction] can be gleaned
from the record and there is no dispute with respect to the accuracy
of that information,” we conclude that there is sufficient information
to allow for effective appellate review of defendant’s contention
(People v Jackson, 11 AD3d 928, 930, lv denied 3 NY3d 757; see
generally People v Yavru-Sakuk, 98 NY2d 56, 60). Based on the record,
we conclude that the People established beyond a reasonable doubt that
defendant was a second violent felony offender (see People v Kinnear,
                                 -2-                         1250
                                                        KA 13-01951

78 AD3d 1593, 1594). We further conclude that the resentence is not
unduly harsh or severe.




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
