| People v Skidds |
| 2014 NY Slip Op 08929 [123 AD3d 1342] |
| December 24, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John Skidds, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, ofcounsel), for respondent.
Stein, J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered September 17, 2012, convicting defendant upon his plea of guiltyof the crime of criminal sexual act in the third degree (two counts), and (2) from ajudgment of said court, rendered May 29, 2013, which revoked defendant's probationand imposed a sentence of imprisonment.
In satisfaction of a six-count indictment, defendant pleaded guilty to two counts ofcriminal sexual act in the third degree and waived his right to appeal. In accord with theplea agreement, defendant was sentenced to 10 years of probation to be servedconcurrently with 120 days in jail. Defendant was subsequently charged with violatingthe condition of probation that he refrain from consuming alcohol, following a positiveurine screen test. After a hearing in January 2013, County Court determined thatdefendant had violated probation and adjourned sentencing to afford him an opportunityto complete treatment. At sentencing, the court revoked defendant's probationarysentence and imposed two consecutive two-year prison terms, to be followed by 10 yearsof postrelease supervision. Defendant now appeals from both the judgment of convictionand the judgment revoking his probation and imposing a sentence of imprisonment.
Initially, defendant's claim that his guilty plea was not voluntary is unpreserved forour review as it was not raised in a postallocution motion and defendant made nostatements during [*2]the plea colloquy that would bringthis case within the narrow exception to the preservation requirement (see People vLopez, 71 NY2d 662, 665-666 [1988]; People v Rouse, 119 AD3d 1161, 1162-1163 [2014]; People v Mydosh, 117 AD3d1195, 1196 [2014], lv denied 24 NY3d 963 [2014]). Moreover, defendant'sassertion that County Court coerced him to refrain from moving to withdraw his guiltyplea is belied by the record. To the contrary, County Court offered defendant anopportunity to withdraw his guilty plea, but appropriately cautioned him as to thepossible risks of doing so and defendant unequivocally agreed with his counsel'srepresentation that he wished to "stand by his plea." Thus, we discern no basis to disturbdefendant's guilty plea.
We reject defendant's contention that his sentence should be modified becauseCounty Court considered factors that were not properly before it.[FN1] In November 2012, justtwo months after defendant was originally sentenced, the Probation Department filed apetition alleging that defendant had violated probation by consuming alcohol. After ahearing, County Court determined that defendant had violated his probationary sentence,but adjourned sentencing to allow defendant the opportunity to engage in inpatienttreatment. Notably, at that time, the court emphasized its position that defendant deservedto be imprisoned and made no promise as to sentence, but indicated that if defendantwere successful in completing an inpatient program, it would consider that treatmentwith respect to sentencing.
In the interim, the Probation Department filed multiple uniform court reports allegingthat defendant had violated probation by allowing a person under the age of 17 to residein his home and by failing to provide a urine sample. At sentencing, County Courtaddressed the allegation that defendant failed to provide a urine sample, which defendantadmitted, albeit with an explanation. County Court thereafter concluded that there was asufficient basis to move to sentencing on the original violation, revoked probation andimposed terms of imprisonment. In doing so, County Court properly considered theuniform court report which "constituted the functional equivalent of an updated[presentence] report" (People vCarey, 86 AD3d 925, 925 [2011] [internal quotation marks and citationsomitted], lv denied 17 NY3d 814 [2011]). Upon a careful review of the record,we perceive neither an abuse of discretion by County Court nor the existence ofextraordinary circumstances that would warrant a reduction of the resentence in theinterest of justice (see People vColsten, 120 AD3d 1508, 1508 [2014]; People v Crowell, 119 AD3d 1163, 1163[2014]).[FN2]
[*3] Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.Ordered that the judgments are affirmed.
Footnote 1:We note that defendantdoes not challenge the finding that he violated the relevant condition of probation.
Footnote 2:We also rejectdefendant's argument that the sentence should be vacated because County Court (Rogers,J.) improperly questioned him in the absence of his attorney with respect to theallegations that he had permitted a person under the age of 17 to reside in his home.While we agree with defendant that such questioning should not have occurred incounsel's absence, we are unconvinced that reversal is required, as there is no recordsupport for the conclusion that counsel's absence had an impact on County Court's(Richards, J.) determination to revoke his probation and impose consecutive sentences(see People v Kaetzel, 117AD3d 1187, 1188-1189 [2014], lv denied 24 NY3d 962 [2014]). Notably,the judge before whom the uncounseled appearance occurred was not the judge whosentenced defendant, and there is no indication in the record that the sentencing judgerelied upon any uncounseled statement made by defendant.