*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1117

KA 12-01650

PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER DAVID A. HENNIGAN, DEFENDANT-APPELLANT.

(APPEAL NO. 1.)

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY OF COUNSEL), FOR RESPONDENT. Appeal from a resentence of the Ontario County Court (Craig J.

Doran, J.), rendered July 2, 2012. Defendant was resentenced upon his conviction of assault in the second degree, assault on a peace officer, police officer, fireman, or emergency medical services professional and attempted criminal possession of a weapon in the second degree.

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, assault in the second degree (Penal Law § 120.05 [3]) and, in appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, burglary in the second degree (§ 140.25 [2]). Although the notice of appeal in appeal No. 1 is taken from the judgment entered May 21, 2012, and not the resentence on July 2, 2012, we exercise our discretion to treat the appeal as taken from the resentence ( see CPL 460.10 [6]). We reject defendant’s contention in appeal Nos. 1 and 2 that the concurrent sentences are unduly harsh and severe.

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court