*1 SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department 11 KA 10-01943 PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER DAVID J. DITUCCI, DEFENDANT-APPELLANT. (APPEAL NO. 2.) FRANK A. ALOI, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF COUNSEL), FOR RESPONDENT.

Appeal from a resentence of the Monroe County Court (Elma A. Bellini, J.), rendered August 8, 2008. Defendant was resentenced to a determinate term of six years with five years postrelease supervision upon his conviction of assault in the second degree.

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed. Same Memorandum as in People v Ditucci ([appeal No.1] ___ AD3d ___ [Feb. 10, 2011]). Entered: February 10, 2011 Patricia L. Morgan

Clerk of the Court