SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1183 

KA 11-02176 

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARIO WOODS, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a resentence of the Onondaga County Court (Anthony F.

Aloi, J.), rendered August 26, 2011. Defendant was resentenced upon

his conviction of burglary in the first degree (two counts), attempted

robbery in the first degree 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 was convicted following a jury trial of

two counts of attempted murder in the first degree (Penal Law §§

110.00, 125.27 [1] [a] [i]), two counts of burglary in the first

degree (§ 140.30 [1], [2]), attempted robbery in the first degree (§§

110.00, 160.15 [2]), criminal possession of a weapon in the second

degree (§ 265.03), and resisting arrest (§ 205.30), and he now appeals

from a resentence with respect to that conviction. County Court

originally sentenced defendant to, inter alia, concurrent determinate

terms of 10 years’ imprisonment for the counts of burglary, attempted

robbery, and criminal possession of a weapon, and we affirmed the

judgment of conviction (People v Woods, 284 AD2d 995, lv denied 96

NY2d 926). The sentencing court failed, however, to impose periods of

postrelease supervision as required by Penal Law § 70.45 (1). To

remedy that Sparber error (see Correction Law § 601-d; People v

Sparber, 10 NY3d 457, 465), the court resentenced defendant prior to

the completion of his sentence to the same terms of imprisonment and

imposed the requisite periods of postrelease supervision (see Penal

Law § 70.45 [1]). 

We reject defendant’s contention that the court abused its

discretion when it imposed the periods of postrelease supervision. In

the absence of the People’s consent, the court was required to impose

the mandatory periods of postrelease supervision (see Penal Law §
-2- 1183 

KA 11-02176 

70.85; People v Williams, 14 NY3d 198, 213, cert denied ___ US ___,

131 S Ct 125; People v Wright, 85 AD3d 1316, 1316). 

Defendant failed to preserve for our review his contention that

the court abused its discretion in failing to order an updated

presentence report prior to resentencing. The record demonstrates

that “[d]efendant did not request that the court order an updated

presentence report or otherwise object to sentencing in the absence of

such a report” (People v Stachnik, 101 AD3d 1590, 1592, lv denied 20

NY3d 1104; see People v Lard, 71 AD3d 1464, 1465, lv denied 14 NY3d

889). In any event, defendant’s contention is without merit because

“the decision whether to obtain an updated report at resentencing is a

matter resting in the sound discretion of the sentencing Judge”

(People v Kuey, 83 NY2d 278, 282).

Defendant also failed to preserve for our review his contentions

that his due process rights were violated, i.e., that he did not

receive notice that he was a “designated person” under Correction Law

§ 601-d (1), and that there was an “unreasonable delay” between his

original sentencing and the resentencing (CPL 380.80 [1]; see

generally People v Smikle, 112 AD3d 1357, 1358, lv denied 22 NY3d

1141). We decline to exercise our power to review those contentions

as a matter of discretion in the interest of justice (see CPL 470.15

[3] [c]).

Finally, defendant’s contention that he was denied effective

assistance of counsel is unreviewable to the extent that it involves

matters outside the record (see generally People v Robinson, 221 AD2d

1029, 1029). To the extent that the record permits review of his

claims of ineffective assistance of counsel, we conclude that they are

without merit (see generally People v Caban, 5 NY3d 143, 152; People v

Baldi, 54 NY2d 137, 147). It is well settled that the “failure to

make a motion or [an objection] that has little or no chance of

success . . . is not ineffective” (People v Dashnaw, 37 AD3d 860, 863,

lv denied 8 NY3d 945 [internal quotation marks omitted]), and

defendant otherwise has failed to show the absence of strategic or

other legitimate explanations for defense counsel’s alleged

shortcomings (see generally People v Benevento, 91 NY2d 708, 712). 

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court