People v. Quattlebaum

Judgment *99of resentence, Supreme Court, New York County (Antonio Brandveen, J.), rendered July 29, 1998, convicting defendant, after a jury trial, of two counts of burglary in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 2V2 to 5 years, unanimously affirmed.

Defendant’s claim, that the court’s imposition of the statutory surcharge at resentencing following the modification of his conviction on appeal (91 NY2d 744) was presumptively vindictive since the surcharge had been waived at the initial sentencing by another Justice, is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was no reasonable likelihood that the imposition of the surcharge was the result of vindictiveness (see, People v Young, 94 NY2d 171). Defendant actually received a prison term that was more lenient than the court could have imposed without exceeding the term imposed originally. We have considered and rejected defendant’s remaining claims. Concur — Nardelli, J. P., Williams, Wallach, Rubin and Friedman, JJ.