People v. Fitzsimmons , 771 N.Y.S.2d 478 ( 2004 )

from a resentence of the Oneida County Court (Barry Donalty, J.), rendered October 1, 2001. Defendant was resentenced following his conviction, upon his plea of guilty, of attempted sexual abuse in the first degree.

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

Memorandum: Defendant appeals from a resentence following his conviction upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]). Defendant failed to preserve for our review his present challenge to the resentence (see CPL 470.05 [2]), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see 470.15 [6] [a]). “Because the resentence occurred more than 30 days after the original sentence, defendant may not now appeal from the judgment, but only from the resentence” (People v Ferrin, 197 AD2d 882, 882 [1993], lv denied 82 NY2d 849 [1993]; see CPL 450.30 [3]). In any event, had defendant’s remaining contentions been properly before us, we would affirm. Present—Pine, J.E, Wisner, Kehoe, Gorski and Lawton, JJ.