| People v Saucier |
| 2010 NY Slip Op 00411 [69 AD3d 1125] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald F.Saucier, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered January 12, 2009, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.
In satisfaction of a three-count indictment, defendant pleaded guilty to one count of drivingwhile intoxicated and waived his right to appeal. To avoid a prison sentence, defendant hadagreed to successfully complete a period of interim probation, the terms of which required him torefrain from using drugs or alcohol and from purchasing alcohol. During the period of thatinterim probation, the Probation Department reported that defendant had tested positive formarihuana use on two occasions, was observed purchasing beer by a probation officer and wasintoxicated during a domestic dispute which required the intervention of law enforcementauthorities. County Court accordingly sentenced defendant to a prison term of 1
We affirm. Defendant's argument that County Court should have conducted a hearing todetermine whether he had violated the terms of his interim probation, while not precluded by hisappeal waiver, is unpreserved due to his failure to seek such a hearing or otherwise move towithdraw his plea or vacate the judgment of conviction (see People v Delayo, 52 AD3d 1114, 1115 [2008], lvdenied 11 NY3d 787 [2008]; People v Kitchens, 46 AD3d 577, 578 [2007], lv denied 10NY3d 767 [2008]). In any event, although County Court must satisfy "itself that the informationupon which it bases the sentence is reliable and accurate," defendant here admitted to usingmarihuana and conceded that he had relapsed and offered his explanation for such at sentencing(People v Outley, 80 NY2d 702, 712 [1993]; see CPL 390.30 [6]; 400.10 [3]; People v Rollins, 50 AD3d 1535,1535-1536 [2008], lv denied 10 NY3d 939 [2008]). Under these circumstances, CountyCourt did not abuse its discretion in imposing an enhanced sentence without a hearing (see People v Valencia, 3 NY3d714, 716 [2004]; People vHope, 32 AD3d 1115, 1116 [2006]; People v Dixon, 295 AD2d 699, 700-701[2002], lv denied 98 NY2d 709 [2002]).
Finally, defendant's appeal waiver—which he does not challenge and which the recordreveals to have been knowingly, intelligently and voluntarily entered—precludes hischallenge to his sentence as harsh and excessive given that he was informed of the maximumsentence that could be imposed if he did not complete the term of interim probation (see People v Bove, 64 AD3d 812,813 [2009], lv denied 13 NY3d 858 [2009]; People v Faulkner, 54 AD3d 1134, 1135 [2008], lv denied11 NY3d 854 [2008]).
Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.