| People v Dexter |
| 2010 NY Slip Op 02332 [71 AD3d 1504] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rubin P.Dexter, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Richard C. Kloch, Sr., J.), renderedAugust 5, 2008. The judgment revoked defendant's sentence of probation and imposed asentence of incarceration.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probationpreviously imposed upon his conviction of criminal contempt in the first degree (Penal Law§ 215.51 [b] [v]). County Court sentenced him to a term of incarceration based on hisadmission that he violated the conditions of his probation. Defendant's contentions with respectto the plea proceeding underlying the original judgment are "not properly before us inasmuch asthere is no notice of appeal from the original judgment in the record before us, nor is thereotherwise any indication in the record that an appeal from that judgment was perfected"(People v Brown, 307 AD2d 759 [2003]; see People v Lawlor, 49 AD3d 1270 [2008], lv denied 10NY3d 936 [2008]; People vParente, 4 AD3d 793 [2004]). We agree with defendant that "[a]lthough defendant'swaiver of the right to appeal encompassed the original sentence of probation . . . , itdid not encompass the [sentence imposed] following defendant's violation of probation"(People v Rodriguez, 259 AD2d 1040 [1999]; see People v Cheatham, 278AD2d 889 [2000], lv denied 96 NY2d 798 [2001]). Contrary to defendant's furthercontention, however, the sentence imposed following the violation of probation is not undulyharsh or severe. Present—Smith, J.P., Centra, Fahey and Pine, JJ.