People v. Rosario

• Decision Date: 31 October 2005
• Docket Number: 2004-02867.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE ROSARIO, Appellant.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 871

802 N.Y.S.2d 634

2005 NY Slip Op 08143

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE ROSARIO, Appellant.

2004-02867.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 31, 2005.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ferdinand, J.), rendered March 22, 2004, convicting him of

criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence, and imposing an additional sentence for the crime of criminal possession of a controlled substance in the seventh degree.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed for the crime of criminal possession of a controlled substance in the seventh degree; as so modified, the judgment is affirmed.

The defendant's contention that the sentence imposed was unconstitutional as applied under the cruel and unusual punishment clause is unpreserved for appellate review (see People v. Gomez, 277 AD2d 250 [2000]; People v. Bolton, 239 AD2d 511, 511-512 [1997]; People v. Mateo, 144 AD2d 388 [1988]). In any event, his contention is without merit (see People v. Thompson, 83 NY2d 477 [1994]; People v. Broadie, 37 NY2d 100 [1975], cert denied 423 US 950 [1975]).

As the People correctly concede, the sentencing court erred in imposing an additional sentence for the crime of criminal possession of a controlled substance in the seventh degree, since the defendant did not plead guilty to that offense (see People v. Brown, 244 AD2d 348 [1997]).

Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.