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

342
KA 11-02020
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATTHEW M. COBADO, DEFENDANT-APPELLANT.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (ELIZABETH ENSELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Cattaraugus County Court (Larry
M. Himelein, J.), rendered August 8, 2011. Defendant was resentenced
upon his conviction of rape in the first degree (four counts) and
criminal possession of a weapon in the second degree.

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

     Memorandum: Defendant appeals from a resentence pursuant to
which County Court added various terms of postrelease supervision
(PRS) to the sentence previously imposed in 2003 on his conviction,
following a jury trial, of four counts of rape in the first degree
(Penal Law § 130.35 [1]) and criminal possession of a weapon in the
second degree (§ 265.03 [2]). Defendant failed to preserve for our
review his contention that the court erred in resentencing him without
ordering an updated presentence report in accordance with CPL 390.20
(see People v Lard, 71 AD3d 1464, 1465, lv denied 14 NY3d 889). In
any event, that contention lacks merit. “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 Kuey, 83 NY2d 278, 282-283; People v
James, 4 AD3d 774, 775).

     We reject defendant’s further contention that he was deprived of
effective assistance of counsel at resentencing (see generally People
v Baldi, 53 NY2d 137, 147). Although defense counsel did not say
anything on the record on defendant’s behalf, the court ultimately
imposed the minimum authorized term of PRS for the rape convictions
(see Penal Law § 70.45 [2-a] [c]), and an equal term of PRS for the
                            -2-                  342
                                           KA 11-02020

weapons offense.




Entered:   March 22, 2013         Frances E. Cafarell
                                  Clerk of the Court
