| People v Carey |
| 2011 NY Slip Op 05761 [86 AD3d 925] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William F.Carey, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedOctober 19, 2010. The judgment revoked defendant's sentence of shock probation and imposed asentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon a plea of guilty of, inter alia, driving whileintoxicated as a class E felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][former (i)]) and was sentenced to a term of shock probation. He subsequently admitted that heviolated a condition of probation and now appeals from a judgment revoking his sentence ofshock probation and imposing a sentence of imprisonment. Defendant failed to preserve for ourreview his contention that County Court erred in failing to order an updated presentence reportbefore sentencing him following the revocation of probation (see People v Obbagy, 56 AD3d 1223 [2008], lv denied 11NY3d 928 [2009]; People vPomales, 37 AD3d 1098 [2007], lv denied 8 NY3d 949 [2007]). In any event,that contention lacks merit. The declaration of delinquency and uniform court report "'constituted the functional equivalent of an updated [presentence] report' " (People v Fairman, 38 AD3d 1346,1347 [2007], lv denied 9 NY3d 865 [2007]; see People v Somers, 280 AD2d 925[2001], lv denied 96 NY2d 806 [2001]). Moreover, the same judge presided over boththe original proceedings and the revocation proceedings, and thus "[t]he court was 'fully familiarwith any changes in defendant's status, conduct or condition' since the original sentencing"(People v Howard, 254 AD2d 701 [1998], lv denied 93 NY2d 853 [1999]; seePeople v Perry, 278 AD2d 933 [2000], lv denied 96 NY2d 866 [2001]; cf. Peoplev Klinkowski, 281 AD2d 972 [2001], lv denied 96 NY2d 831 [2001]).
Defendant further contends that the court should have permitted him to withdraw hisadmission to the violation of probation because the court never informed him that the sentence ofimprisonment was an agreed-upon sentence and there is no indication in the record that defensecounsel informed him of the terms of the agreement. To the extent that defendant's contentionmay be construed as a contention that his admission was not knowingly, voluntarily orintelligently entered, that contention is not preserved for our review and does not fall within therare exception to the preservation requirement (see People v Springstead, 57 AD3d 1397, 1398 [2008], lvdenied 12 NY3d 788 [2009]; Peoplev Barra, 45 AD3d 1393, 1393-1394 [2007], lv denied 10 NY3d 761 [2008];see generally People v Lopez, 71 NY2d 662, 666 [1988]). Insofar as defendant contendsthat defense [*2]counsel failed to inform him of the terms of theagreement, that contention is based on material outside the record and thus must be raised by wayof a motion pursuant to CPL article 440 (see People v Shorter, 305 AD2d 1070, 1071[2003], lv denied 100 NY2d 566 [2003]). Finally, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Centra, Fahey, Lindley and Martoche, JJ.