| People v Kuras |
| 2008 NY Slip Op 02260 [49 AD3d 1196] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alexander J.Kuras, Appellant. (Appeal No. 1.) |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedNovember 23, 2005. The judgment convicted defendant upon his plea of guilty of, inter alia,grand larceny in the third degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed (see People v Haywood, 203 AD2d 966 [1994], lv denied83 NY2d 967 [1994]) and the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of, inter alia, grand larceny in the third degree (Penal Law § 155.35) and, inappeal No. 2, he appeals from a judgment revoking the sentence of probation imposed inconnection with another judgment of conviction and imposing a sentence of incarceration.Addressing first the contention of defendant with respect to appeal No. 2, we conclude that thePeople, by presenting the testimony of defendant's probation officer that she observed defendantplead guilty to a charge of criminal mischief while on probation, presented "the requisite'residuum of competent legal evidence' " (People v Michael J.F., 15 AD3d 952, 953 [2005]). Defendantpresented no evidence, and we conclude that the People met their burden of establishing by apreponderance of the evidence that he violated the terms and conditions of his probation (see People v Pomales, 37 AD3d1098 [2007], lv denied 8 NY3d 949 [2007]).
With respect to appeal No. 1, defendant failed to move to withdraw the plea or to vacate thejudgment of conviction and thus failed to preserve for our review his contention that his plea wasnot knowingly and voluntarily entered (see People v Peterson, 35 AD3d 1195 [2006], lv denied 8NY3d 926 [2007]). Even assuming, arguendo, that this is one of those rare cases in whichpreservation of defendant's contention is not required (see People v Lopez, 71 NY2d 662,666 [1988]), we conclude that County Court conducted a sufficient inquiry to ensure that the pleawas knowingly and voluntarily entered (see id.; People v Greer, 277 AD2d 1051[2000], lv denied 96 NY2d 829 [2001]). Finally, to the extent that defendant challengesthe resentences after it was determined he was ineligible for shock incarceration, that challenge isnot properly before us because defendant did not take an appeal from the resentences.Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.