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People v. Smith

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 28, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
JERMAINE SMITH, APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ANITA R. FLORIO, J.P., JOSEPH COVELLO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Ind. No. 9851/01)

DECISION & ORDER

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; People v Killiebrew,AD3d, 2009 NY Slip Op 05361 [2d Dept 2009]; People v Marshall, 228 AD2d 15, 17-18; cf. People v D'Avila, 21 AD3d 905; People v McHale, 165 AD2d 800) and, in any event, is without merit (see People v Stewartson,AD3d , 2009 NY Slip Op 05157 [2d Dept 2009]).

FLORIO, J.P., COVELLO, BALKIN and LEVENTHAL, JJ., concur.

20090728

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