Opinion
KA 01-01889.
Decided March 19, 2004.
Appeal from a resentence of the Supreme Court, Monroe County (Donald J. Mark, J.), rendered December 19, 2000. Defendant was resentenced as a persistent felony offender upon his conviction of attempted murder in the second degree and assault in the first degree following this Court's vacatur of defendant's sentence.
FREDERICK P. LESTER, ROCHESTER, FOR DEFENDANT-APPELLANT.
KEVIN J. JOHNSON, DEFENDANT-APPELLANT PRO SE.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from be and the same hereby is unanimously affirmed.
Memorandum: The contention of defendant that Supreme Court failed to abide by the terms of our remittal in resentencing him as a persistent felony offender ( People v. Johnson, 275 A.D.2d 949, 951, lv denied 95 N.Y.2d 965) is not preserved for our review ( see People v. Proctor, 79 N.Y.2d 992; People v. Hernandez, 273 A.D.2d 176, lv denied 95 N.Y.2d 890, 935; People v. Banks, 265 A.D.2d 163, lv denied 94 N.Y.2d 819). In any event, defendant's contention lacks merit.
Defendant contends in a pro se supplemental brief that the procedure pursuant to which he was resentenced as a persistent felony offender is unconstitutional. That contention is not preserved for our review and, in any event, is without merit ( see People v. Rosen, 96 N.Y.2d 329, 334-335, cert denied 534 U.S. 899). We conclude that defendant's remaining contention in the pro se supplemental brief also is without merit.