| People v Paragallo |
| 2011 NY Slip Op 02492 [82 AD3d 1508] |
| March 31, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ErnestG. Paragallo, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.),rendered May 18, 2010, convicting defendant following a nonjury trial of the crime of cruelty toanimals (33 counts).
In August 2009, defendant was charged in a 35-count indictment with numerousmisdemeanor violations of Agriculture and Markets Law § 353 after State Police andmembers of the Columbia-Greene Humane Society discovered 35 horses—foundemaciated, suffering from skin infections with most suffering from body lice—on a horsefarm managed by defendant and located in Greene County.[FN1]Defendant waived his right to a jury trial and, after the conclusion of a bench trial, County Courtconvicted defendant on 33 counts of failing to provide proper sustenance to an animal(see Agriculture and Markets Law § 353). A presentence investigation wasconducted and a presentence report was prepared. Prior to sentencing, defendant submittedwritten objections to the presentence report and requested that County Court disregard certainportions of the report, contending that it improperly advocated for a specific outcome, containeda victim impact statement prepared on behalf of the horses by an unidentified individual, and[*2]improperly referenced prior uncharged incidents that werenever substantiated. On the day of sentencing, County Court granted defendant's request andagreed to strike from the presentence report the victim impact statement and references to prioruncharged incidents. The court further directed defendant to "redact its copy of the presentencereport and provide such to the [c]ourt and the District Attorney within a week so that the originalreport can be altered and preserved in that modified form for appeal." County Court then, inaddition to certain fines and restitution, imposed consecutive one-year sentences for each countwhich, by operation of law, amounted to a prison term of two years (see Penal Law§ 70.15 [1]; § 70.30 [2] [b]). Defendant now appeals.[FN2]
Defendant's sole contention on appeal is that County Court erred in sentencing him based onthe presentence report, which defendant contends is improper and inflammatory. "The purpose ofa presentence investigation 'is to provide the court with the best available information uponwhich to render an individualized sentence' " (People v Thomas, 2 AD3d 982, 984 [2003], lv denied 1NY3d 602 [2004], quoting People v Perry, 36 NY2d 114, 120 [1975]), and shouldinclude all information that may have a bearing upon sentencing (see CPL 390.30; 9NYCRR 350.6 [b]), including information that may not be admissible at trial (see People v Jones, 77 AD3d1178, 1179 [2010]; People v Thomas, 2 AD3d at 984; People v Whalen, 99AD2d 883, 884 [1984], lv denied 62 NY2d 655 [1984]).[FN3]
As an initial matter, contrary to defendant's contention, since County Court considereddefendant's objections and opted not to rely on the challenged information contained in thepresentence report, the court did not have to await the actual physical redaction of the reportbefore sentencing defendant (see Peoplev Ali-Rachedi, 34 AD3d 981, 981 [2006], lv denied 8 NY3d 878 [2007];People v Thomas, 2 AD3d at 984). Furthermore, since, pursuant to 9 NYCRR 350.7 (b)(5), the presentence report "shall contain a statement concerning the type of courtdisposition/sentence recommended," we are unpersuaded that the report improperly advocatedfor the maximum sentence. To the extent that defendant objects to certain witness statementscontained in the presentence report as improperly advocating for the maximum sentence,defendant failed to establish that such statements were not relevant to the question of sentence(see CPL 390.30 [3] [a]). There is also no indication that, in preparing the report, theinvestigating probation officer failed to "distinguish between fact and professional assessment,and between [his or her] own observations and those from other sources" (9 NYCRR 350.5) orthat County Court relied on any improper or prejudicial statements in imposing sentence (seePeople v Henderson, 305 AD2d 940, 942 [2003], lv denied 100 NY2d 582 [2003]).
Finally, as County Court struck both the victim impact statement and allegations ofuncharged crimes from the presentence report and based its sentencing on the presentence report"as modified by [its] ruling," we are unpersuaded by defendant's contention that the courtimproperly considered both the anonymous victim impact statement and allegations of unchargedcrimes, and defendant has failed to establish that, in sentencing defendant, it relied on thisinformation (see People v Anderson, 184 AD2d 922, 923 [1992], lv denied 80NY2d 901 [1992]; [*3]People v Walworth, 167 AD2d622, 623 [1990]). In any event, with respect to allegations of uncharged crimes, "[a] presentencereport may include any relevant information on the history of defendant . . . evenoffenses for which he [or she] has not been convicted" (People v Whalen, 99 AD2d at884).
Defendant's remaining challenge to the presentence report, that it contained prejudicialstatements concerning both defendant and horse racing in general, has not been preserved forappellate review, and we decline to exercise our interest of justice jurisdiction with respect to thisissue (see CPL 470.15 [6] [a]; People v Tolliver, 55 AD3d 1302 [2008]; People v Harrington, 3 AD3d 737,739 [2004]).
Peters, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Greene County for further proceedings pursuant to CPL460.50 (5).
Footnote 1: In February 2010, County Courtgranted the People's motion to amend the indictment to correct certain dates when the criminalconduct was alleged to have occurred.
Footnote 2: In June 2010, this Court granteddefendant's motion to stay execution on the judgment pending defendant's appeal.
Footnote 3: At the time of defendant'ssentencing, a presentence report was required for a sentence in excess of 90 days (seeCPL 390.20 [2] [b], as amended by L 2010, ch 179, § 1).