People v. Johnson

Appeal from a resentence of the Supreme Court, Monroe County (Donald J. Mark, J.), rendered December 19, 2000. Defendant was resentenced as a persistent felony offender upon his conviction of attempted murder in the second degree and assault in the first degree following this Court’s vacatur of defendant’s sentence.

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

Memorandum: The contention of defendant that Supreme Court failed to abide by the terms of our remittal in resentencing him as a persistent felony offender (People v Johnson, 275 AD2d 949, 951 [2000], lv denied 95 NY2d 965 [2000]) is not preserved for our review (see People v Proctor, 79 NY2d 992 [1992]; People v Hernandez, 273 AD2d 176 [2000], lv denied 95 NY2d 890, 935 [2000]; People v Banks, 265 AD2d 163 [1999], lv denied 94 NY2d 819 [1999]). In any event, defendant’s contention lacks merit.

Defendant contends in a pro se supplemental brief that the procedure pursuant to which he was resentenced as a persistent felony offender is unconstitutional. That contention is not preserved for our review and, in any event, is without merit (see People v Rosen, 96 NY2d 329, 334-335 [2001], cert denied 534 US 899 [2001]). We conclude that defendant’s remaining contention in the pro se supplemental brief also is without merit. Present—Wisner, J.P., Hurlbutt, Kehoe, Lawton and Hayes, JJ.