| People v Rollins |
| 2008 NY Slip Op 03798 [50 AD3d 1535] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin Rollins,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedAugust 16, 2006. The judgment revoked defendant's interim probation supervision and imposed asentence of incarceration.
It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence ofincarceration is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking his interim probationsupervision (see CPL 390.30 [6]) and sentencing him to a term of incarceration upon hisconviction, based on a plea of guilty, of criminal contempt in the second degree (Penal Law§ 215.50 [3]). County Court and the parties have improperly characterized the procedure torevoke the interim probation supervision as a violation of probation hearing (see CPL410.70). The procedures set forth in CPL 410.70 do not apply where, as here, there has been nosentence of probation (cf. People vTrathen, 2 AD3d 1065 [2003], lv denied 1 NY3d 635 [2004]; see generallyPeople v Rodney E., 77 NY2d 672, 674-676 [1991]). Indeed, interim probation supervisionis imposed prior to sentencing. We thus conclude that the presentence procedures set forth inCPL 400.10 apply herein, and we further conclude that the summary hearing conducted by thecourt was sufficient pursuant to CPL 400.10 (3) to enable the court to "assure itself that theinformation upon which it bas[ed] the sentence [was] reliable and accurate" (People vOutley, 80 NY2d 702, 712 [1993]). The hearing was "of sufficient depth" to enable the courtto determine that defendant failed to comply with the terms and conditions of his interimprobation supervision (id. at 713; cf. People v Collins, 225 AD2d 1050 [1996]).
To the extent that defendant contends that the sentence is unduly harsh and severe, weconclude that his contention is moot because he has completed serving his sentence (seePeople v Griffin, 239 AD2d 936 [1997]). Present—Scudder, P.J., Hurlbutt, Smith,Fahey and Gorski, JJ.