RICHARDSON, THOMAS J., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
713
KA 13-00941
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
THOMAS J. RICHARDSON, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE LAW OFFICE OF GUY
A. TALIA (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered March 26, 2013. The judgment
convicted defendant, after a nonjury trial, of incest in the third
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
following a bench trial, of incest in the third degree (Penal Law
§ 255.25) and sentencing him, as a second felony offender, to an
indeterminate term of incarceration of 2 to 4 years. Defendant’s sole
contention on appeal is that Supreme Court erred in failing to redact
or correct allegedly inaccurate or otherwise improper information
contained in the presentence report (PSR) concerning defendant’s
present offense. We conclude that defendant has failed to preserve
his contention for our review (see People v Russell, 133 AD3d 1199,
1200, lv denied 26 NY3d 1149). Although defense counsel brought the
alleged errors in the PSR to the sentencing court’s attention (see
generally People v Williams, 89 AD3d 1222, 1224, lv denied 18 NY3d
887), he failed to request any corrective action. As we held in
People v James (114 AD3d 1312, 1312), “[i]f the investigation report
contains incorrect information, [defendant] should object at
sentencing to the inclusion of the erroneous information and move to
strike it” (internal quotation marks omitted).
In any event, “ ‘defendant has made no showing that the
information [in the PSR] was inaccurate’ ” (People v Rudduck, 85 AD3d
1557, 1558, lv denied 17 NY3d 861; see People v James, 140 AD3d 1628,
1628). The contention that the PSR may not refer to accusations and
charges of which defendant was acquitted as part of the instant
prosecution is belied by the regulations and statutes cited by
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KA 13-00941
defendant (see 9 NYCRR 350.1 [e], incorporating by reference Penal Law
§ 60.27 [4] [a]; see also 9 NYCRR 350.6 [c] [1] [iv]).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court