| People v Anderson |
| 2009 NY Slip Op 06998 [66 AD3d 1431] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PatrickAnderson, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedSeptember 12, 2006. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant appeals from a judgment revoking his sentence of probationimposed upon his conviction, following his plea of guilty, of unlawful imprisonment in thesecond degree (Penal Law § 135.05), and sentencing him to a one-year term ofimprisonment. Inasmuch as " 'defendant has completed serving the sentence imposed, hiscontention that the sentence is unduly harsh and severe has been rendered moot' " (People v Bald, 34 AD3d 1362[2006]). Even assuming, arguendo, that defendant's contention is not moot, "we [would] declineto reduce the sentence to 364 days to enable defendant to avoid deportation" (People v Soroka, 28 AD3d 1219,1220 [2006], lv denied 7 NY3d 818 [2006]).
Contrary to defendant's further contention, "[t]he People properly presented the requisiteresiduum of competent legal evidence and thus met their burden of establishing by apreponderance of the evidence that defendant violated the terms and conditions of his probation"(People v Van Every, 26 AD3d777, 777 [2006] [internal quotation marks omitted]). The contention of defendant thatdefense counsel was ineffective in failing to object to the condition of his probation requiring sexoffender treatment is not properly before us inasmuch as defendant failed to appeal from theunderlying judgment of conviction (seePeople v Grzywaczewski, 61 AD3d 699 [2009]; People v Postula, 50 AD3d 1581 [2008], lv denied 10NY3d 938 [2008]; see also People vSatiro, 28 AD3d 497 [2006]). Finally, we conclude that the evidence, the law, and thecircumstances of this case, viewed in totality and as of the time of the representation, establishthat defense counsel provided meaningful representation at the probation revocation hearing(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Hurlbutt, J.P.,Fahey, Peradotto, Green and Pine, JJ.