People v Smith

People v Smith 2009 NY Slip Op 06043 [64 AD3d 798] July 28, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

The People of the State of New York, Respondent,
v
Jermaine Smith, Appellant.

—[*1] Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Marie-Claude P. Wrenn-Myers of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Dowling, J.), imposed October 3, 2007, upon his conviction of criminal possession of a weapon in the second degree, upon a jury verdict.

Ordered that the resentence is affirmed.

The defendant's contention that the resentencing court improperly failed to sentence him de novo is unpreserved for appellate review (see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 315-316 [2004]; People v Killiebrew, 63 AD3d 1088 [2009]; People v Marshall, 228 AD2d 15, 17-18 [1997]; cf. People v D'Avila, 21 AD3d 905 [2005]; People v McHale, 165 AD2d 800 [1990]) and, in any event, is without merit (see People v Stewartson, 63 AD3d 966 [2009]). Florio, J.P., Covello, Balkin and Leventhal, JJ., concur.