| People v Johnson |
| 2010 NY Slip Op 06995 [77 AD3d 1441] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darrell Johnson,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered December7, 2007. The judgment revoked defendant's sentence of probation and imposed a sentence ofincarceration.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previouslyimposed upon his conviction of rape in the third degree (Penal Law § 130.25 [2]) and sexualabuse in the third degree (§ 130.55) and sentencing him to a term of incarceration based on hisadmission that he violated a condition of his probation. Defendant's contention with respect to the pleaproceeding underlying the original judgment is "not properly before us inasmuch as there is no notice ofappeal from the original judgment in the record before us, nor is there otherwise any indication in therecord that an appeal from that judgment was perfected" (People v Brown, 307 AD2d 759[2003]; see People v Lawlor, 49 AD3d1270 [2008], lv denied 10 NY3d 936 [2008]; People v Parente, 4 AD3d 793 [2004]). Although defendant is correctthat his waiver of the right to appeal encompassed the sentence of probation but did not encompass thesentence of incarceration imposed following his violation of probation (see People v Cheatham,278 AD2d 889 [2000], lv denied 96 NY2d 798 [2001]; People v Rodriguez, 259AD2d 1040 [1999]), we nevertheless reject his contention that the sentence of incarceration is undulyharsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendantwas sentenced to a determinate term of incarceration of 60 days for his conviction of sexual abuse inthe third degree, and it must therefore be amended to reflect that he was sentenced to a determinateterm of incarceration of three months (seePeople v Martinez, 37 AD3d 1099, 1100 [2007], lv denied 8 NY3d 947 [2007]).
We have reviewed defendant's remaining contentions and conclude that they are without merit.Present—Smith, J.P., Peradotto, Lindley, Sconiers and Pine, JJ.