People v Grzywaczewski

2009 NY Slip Op 02806 [61 AD3d 699]

April 7, 2009

Appellate Division, Second Department

As corrected through Wednesday, June 10, 2009

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

—[*1]Michele Marte-Indzonka, Newburgh, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R.Kass of counsel), for respondent.

Appeal by the defendant from an amended judgment of the County Court, Orange County(De Rosa, J.), rendered February 19, 2008, revoking a sentence of probation previously imposedby the same court, upon a finding that he violated a condition thereof, upon his admission, andimposing a sentence of imprisonment of 11/3 to 4 years upon his previousconviction of sodomy in the second degree.

Ordered that the amended judgment is affirmed.

The defendant did not appeal from the original judgment convicting him, upon his plea ofguilty, of sodomy in the second degree. Therefore, on this appeal from the amended judgment,the defendant is foreclosed from challenging the propriety of the original judgment, including,inter alia, claims as to the validity of his plea of guilty or the effectiveness of his counsel (see People v Trias, 50 AD3d 828[2008]; People v Kimbrough, 25AD3d 810 [2006]; People v Augustin, 286 AD2d 442 [2001]; People vOquendo, 286 AD2d 740 [2001]; People v Riddick, 269 AD2d 472 [2000]).

The defendant's contention that the County Court improvidently exercised its discretion inresentencing him on the violation of probation without obtaining an updated presentence reportis not preserved for appellate review (see People v Rogers, 45 AD3d 786, 787 [2007]; People vRamirez, 29 AD3d [*2]1022 [2006]; People v Gambichler, 25 AD3d722 [2006]) and, in any event, is without merit (see People v Kuey, 83 NY2d 278[1994]; People v Fernandez, 7AD3d 886 [2004]; People vOrtega, 1 AD3d 533 [2003]; People v Viruet, 288 AD2d 407 [2001]).

In addition, the defendant admitted to the violation of probation with a full understandingthat he would receive the term of imprisonment actually imposed at the time of resentencing, andtherefore he has "no basis now to complain that his [resentence] was excessive" (People vKazepis, 101 AD2d 816, 817 [1984]; see People v Martinez, 286 AD2d 447 [2001];People v Allen, 269 AD2d 534 [2000]). In any event, the resentence was not excessive(see People v Suitte, 90 AD2d 80 [1982]).

The defendant's remaining contentions are without merit. Skelos, J.P., Santucci, Angiolillo,Dickerson and Chambers, JJ., concur.