Summary
holding that because defense counsel did not request that defendant be afforded an opportunity to speak or bring such omission to the sentencing court's attention, this claim had not been preserved for review
Summary of this case from Glover v. FilionOpinion
Argued September 11, 1981
Decided October 15, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, E. LEO MILONAS, J.
Erica Horwitz and William E. Hellerstein for appellant. Robert M. Morgenthau, District Attorney (Russell A. Bikoff and Allen Alpert of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
As the People recognize, the provisions of CPL 380.50 apply to occasions of resentencing as well as to those of initial sentencing, and were accordingly applicable on January 8, 1980 when this defendant was resentenced.
At the resentencing, three attorneys addressed the court on defendant's behalf; the comment of one appears to have led to a reduction from the original sentence. At no time was there any request from any of these attorneys that defendant be afforded his statutory right to make a statement personally in his own behalf nor was the failure to comply with the statutory mandate in this regard otherwise brought to the court's attention. In this circumstance the sentencing court's error, which was not of constitutional dimension (see People v McClain, 35 N.Y.2d 483) and which could so readily have been remedied had it then been invited to the court's attention, was not preserved for appellate review.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.