| People v Guevara |
| 2009 NY Slip Op 09840 [68 AD3d 1738] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carlos E.Guevara, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedJanuary 11, 2008. The judgment convicted defendant, upon his plea of guilty, of vehicularmanslaughter in the first degree and driving while intoxicated, a class D felony.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofvehicular manslaughter in the first degree (Penal Law § 125.13 [2] [b]) and felony drivingwhile intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (ii)]).We reject the contention of defendant that County Court erred in denying his request for accessto the People's records that were available to the Probation Department in its preparation of thepresentence report. In support of his request, defendant alleged that he sought equal access "toinsure that any possible inaccuracies or misrepresentations . . . are addressed priorto sentencing." Contrary to defendant's contention, however, we conclude that the sentencingsatisfied the requirements of due process, i.e., "that the information [upon which] the sentencingcourt relie[d] . . . [was] 'reliable and accurate' " and that defendant had anopportunity to respond to that information (People v Hansen, 99 NY2d 339, 345 [2003];see People v Outley, 80 NY2d 702, 712 [1993]; People v Clark, 61 AD3d 1179, 1181 [2009], lv denied 12NY3d 924 [2009]; see generally People v Perry, 36 NY2d 114, 119 [1975]). Indeed,defendant did not assert at sentencing that the court relied on misinformation or materially untrueassumptions in sentencing him (see Hansen, 99 NY2d at 346), and he was given theopportunity to contest the information in the presentence report, either by submitting his ownpresentence memorandum (see CPL 390.40 [1]), or by making a statement at sentencing(see CPL 380.50 [1]). Finally, the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.