People v Sander

2008 NY Slip Op 00129 [47 AD3d 1012]

January 10, 2008

Appellate Division, Third Department

As corrected through Wednesday, March 12, 2008

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

—[*1]Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.

Spain, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.),rendered July 27, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.

In May 2003, defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with conspiracy in the fourth degree, stemming from his involvementin a robbery. Under the terms of a plea agreement, defendant was adjudicated a youthful offenderand sentenced to five years of probation. After twice admitting to violating the terms of hisprobation, defendant's probation was modified by County Court to include the requirement thathe attend a residential drug treatment program for four months, after which he would beconsidered for participation in the Delaware County Treatment Court (hereinafter Drug Court).

In January 2005, defendant entered the Drug Court program, agreeing, among other things, toparticipate in any additional recommended treatment and provide verification of his participationupon request. Defendant also agreed to the condition that if he did not successfully complete theDrug Court program, his probation would be revoked and he would be resentenced to a term ofimprisonment of 11/3 to 4 years. In June 2006, a violation of probation petitionwas filed against defendant and, following a hearing, County Court found defendant in violationof both his probation and the Drug Court participation agreement for failing to attend required[*2]meetings and providing false verification of his attendance.Thereafter, County Court revoked defendant's probation and sentenced him, pursuant to the DrugCourt agreement, to a prison term of 11/3 to 4 years. Defendant now appeals.

We affirm. Defendant initially contends that County Court erred in finding him in violationof his probation for failing to attend required meetings, because the Drug Court's requirementthat he attend Alcoholics Anonymous violated the Establishment Clause of the US Constitution.A review of the record reveals that defendant failed to raise this challenge during the probationviolation hearing or at resentencing. Thus, the issue is not preserved for our review (seeCPL 470.05 [2]; People v Iannelli, 69 NY2d 684 [1986], cert denied 482 US 914[1987]). In any event, the record clearly supports the court's determination that defendantfalsified his attendance verification reports to reflect that he was present at meetings which he didnot in fact attend.

Additionally, inasmuch as defendant failed to request an updated presentence report or moveto vacate the resentencing, defendant's contention that County Court erred in failing to order asecond presentence report is not preserved for our review (see People v Henkel, 37 AD3d 873, 873 [2007], lv denied 8NY3d 985 [2007]; People v Walts,34 AD3d 1043, 1044 [2006], lv denied 8 NY3d 850 [2007]; People v Johnston, 32 AD3d 556,556 [2006]). Even if we were to consider the claim, under the circumstances presented here, wefind no abuse of discretion by County Court in resentencing defendant without an updatedpresentence investigation report (see People v Kuey, 83 NY2d 278, 282 [1994];People v Henkel, 37 AD3d at 873). Accordingly, the judgment appealed from is affirmed.

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