People v. Brinson

298 A.D.2d 870, 747 N.Y.S.2d 829, 2002 N.Y. App. Div. LEXIS 9065

Opinion

—Appeal from an order of Supreme Court, Niagara County (Koshian, J.), entered September 20, 1999, which denied defendant’s CPL 440.20 motion.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his pro se CPL 440.20 motion. Supreme Court did not err in sentencing defendant upon his plea of guilty to criminal facilitation in the second degree (Penal Law § 115.05) without first obtaining and considering an updated presentence investigation report because defendant expressly waived the right to an updated report as part of his negotiated plea (cf. People v Cintron, 191 AD2d 705). In any event, an updated report was not necessary. At sentencing the court had before it the presentence investigation report that it had used when sentencing defendant on a judgment of conviction subsequently reversed by this Court (People v Brinson, 195 AD2d 966). Defendant has been continuously incarcerated since that presentence investigation report was prepared, and thus “the court could be assured * * * that there was no new relevant information” (People v White, 115 AD2d 313, 315). Defendant’s remaining contentions are not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present — Pine, J.P., Hayes, Kehoe, Gorski and Lawton, JJ.