People v Kaulback

2007 NY Slip Op 09824 [46 AD3d 1027]

December 13, 2007

Appellate Division, Third Department

As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v JacquelineKaulback, Appellant.

—[*1]Abbie Goldbas, Utica, for appellant.

Donald F. Cerio Jr., District Attorney, Wampsville (Jeffrey A. Aumell of counsel), forrespondent.

Lahtinen, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered December 21, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.

As a result of forging checks belonging to her employer and making unauthorized purchaseson her employer's credit cards, defendant pleaded guilty to grand larceny in the fourth degree inApril 2002 and was sentenced to five years probation. In November 2006, defendant was chargedwith violating her probation based upon allegations of, among others, failing to notify herprobation officer of her employment as a medical aide to a person suffering from multiplemedical problems, an allegation which was eventually sustained by County Court. Following itsdetermination that defendant had violated her probation, County Court resentenced her to a termof imprisonment of 11/3 to 4 years. Defendant now appeals, contending thatCounty Court abused its discretion in failing to order an updated presentence investigation reportand that her sentence was harsh and excessive. We disagree.

Initially, as defendant concedes, inasmuch as she failed to request an updated report or makean appropriate objection, her first contention is unpreserved for our review (see People v Henkel, 37 AD3d873, 873 [2007], lv denied 8 NY3d 985 [2007]; People v Walts, 34 AD3d 1043, 1044 [2006], lv denied 8NY3d 850 [2007]; People v Olivett, 301 AD2d 968, 969[*2][2003]). In any event, defendant and counsel both made statementsto County Court before sentencing, thus affording them the opportunity to apprise it of anypertinent subsequent conduct (see People v Kuey, 83 NY2d 278, 282-283 [1994]).Further, both of defendant's probation officers testified as to defendant's intervening conduct atthe hearing and were cross-examined by defense counsel (see People v Fernandez, 7 AD3d 886, 887 [2004]). Thus, it is clearfrom the record that defendant had ample opportunity to supply any pertinent information toCounty Court, and it was aware of defendant's comportment subsequent to the presentenceinvestigation report. Consequently, we find that County Court did not abuse its discretion indetermining not to update the report (see People v Kuey, 83 NY2d at 282-283; Peoplev Henkel, 37 AD3d at 873; People v Walts, 34 AD3d at 1044).

Finally, given defendant's inability to abide by the terms of her probation, we areunpersuaded that the sentence imposed was harsh and excessive and we find no extraordinarycircumstances that would warrant a reduction of the sentence in the interest of justice (seePeople v Walts, 34 AD3d at 1044; People v Fernandez, 7 AD3d at 887).

Cardona, P.J., Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.