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

924
KA 12-00296
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHANNON CAMPBELL, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SHANNON CAMPBELL, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered January 24, 2012. Defendant was
resentenced upon his conviction of sexual abuse in the first degree,
rape in the first degree (three counts), endangering the welfare of a
child (three counts), sodomy in the first degree (three counts) and
incest.

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

     Memorandum: Defendant was convicted following a jury trial of,
inter alia, three counts each of rape in the first degree (Penal Law §
130.35 [3]) and sodomy in the first degree (former § 130.50 [3]). On
a prior appeal, we affirmed the judgment of conviction (People v
Campbell, 286 AD2d 979, lv denied 97 NY2d 702), and defendant now
appeals from a resentence pursuant to Correction Law § 601-d and Penal
Law § 70.85. Defendant failed to preserve for our review his
contention that Supreme Court erred in failing to order an updated
presentence report “inasmuch as he never requested such an update,
objected to the presentence report at the resentencing, or moved to
vacate the resentencing on that ground” (People v Lard, 71 AD3d 1464,
1465, lv denied 14 NY3d 889). In any event, defendant’s contention is
without merit. “[T]he decision whether to obtain an updated
[presentence] report at resentencing is a matter resting in the sound
discretion of the sentencing [court] . . . Where, as here, [the]
defendant has been continually incarcerated between the time of the
initial sentencing and resentencing, to require an update . . . does
not advance the purpose of CPL 390.20 (1)” (id. [internal quotation
marks omitted]; see People v Cobado, 104 AD3d 1322, 1322-1323; see
generally People v Kuey, 83 NY2d 278, 282-283). We reject defendant’s
                                 -2-                           924
                                                         KA 12-00296

further contention that the imposition of five-year periods of
postrelease supervision (PRS) is unduly harsh and severe, but we note,
as we did in the original appeal, that the aggregate sentence of 75
years of incarceration is reduced by operation of law to 50 years (see
Penal Law § 70.30 [1] [e] [vi]).

     We do not address any of the contentions raised by defendant in
his pro se supplemental brief inasmuch as they concern matters related
to the original proceeding. “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’ ” (People v Howard, 96 AD3d 1701, 1702, lv
denied 19 NY3d 1103, quoting People v Lingle, 16 NY3d 621, 635).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
