| People v Gianni |
| 2012 NY Slip Op 03052 [94 AD3d 1477] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SalvatoreGianni, Appellant. (Appeal No. 1.) |
—[*1] Salvatore Gianni, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedAugust 20, 2008. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment revoking the sentence ofprobation previously imposed upon his conviction of criminal contempt in the first degree (PenalLaw § 215.51 [b] [v]) and imposing a sentence of imprisonment based on his violation ofthe terms and conditions of his probation. In appeal No. 2, defendant appeals from a judgmentrevoking the sentence of probation previously imposed upon his conviction of felony drivingwhile intoxicated (Vehicle and Traffic Law § 1192 [3]; 1193 [1] [c] [former (i)]) andimposing a sentence of imprisonment based on his violation of the terms and conditions of hisprobation.
With respect to both appeals, defendant contends in his pro se supplemental brief that CountyCourt failed to comply with the procedures for a probation violation hearing set forth in CPL410.70 and that he was thereby deprived of due process. Defendant failed to preserve thatcontention for our review (see generallyPeople v Randall, 48 AD3d 1080 [2008]; People v Ebert, 18 AD3d 963, 964 [2005]; People v Zaborowski, 16 AD3d1058, 1058 [2005], lv denied 5 NY3d 772 [2005]) and, in any event, defendant'scontention is without merit (see generally Randall, 48 AD3d 1080; Ebert, 18AD3d at 964). To the extent that defendant contends he was denied effective assistance ofcounsel because defense counsel failed to advise him of his rights relative to the probationrevocation hearing, that contention involves matters outside the record on appeal and must beraised by way of a motion pursuant to CPL article 440 (see People v Johnson, 81 AD3d 1428, 1428 [2011], lvdenied 16 NY3d 896 [2011]; Peoplev Balenger, 70 AD3d 1318, 1318 [2010], lv denied 14 NY3d 885 [2010]). Withrespect to the remaining instances of alleged ineffective assistance of counsel, we conclude basedon the record before us that defendant received meaningful representation (see [*2]generally People v Baldi, 54 NY2d 137, 147 [1981]; Peoplev Haas, 245 AD2d 825, 826 [1997]).
Defendant failed to preserve for our review the further contention in his pro se supplementalbrief that the court "erred in failing to order an updated presentence report before sentencing himfollowing the revocation of probation" (People v Carey, 86 AD3d 925, 925 [2011], lv denied 17NY3d 814 [2011]). In any event, that contention is without merit inasmuch as the declarations ofdelinquency, the violation of probation reports and the testimony and documentary evidenceproduced at the revocation hearing "constituted the functional equivalent of an updated[presentence] report" (id. at 925 [internal quotation marks omitted]; see People v Fairman, 38 AD3d1346, 1347 [2007], lv denied 9 NY3d 865 [2007]; People v Bennett, 269AD2d 401 [2000], lv denied 94 NY2d 916 [2000]). Further, inasmuch as the same judgepresided over both the original proceedings and the revocation proceedings, "[t]he court was fullyfamiliar with any changes in defendant's status, conduct or condition since the originalsentencing" (Carey, 86 AD3d at 925 [internal quotation marks omitted]; see also People v Pomales, 37 AD3d1098, 1098-1099 [2007], lv denied 8 NY3d 949 [2007]).
Contrary to the contention of defendant in his main and pro se supplemental briefs, thesentence is not unduly harsh or severe, particularly in light of defendant's history of unsuccessfulprobation attempts, his lengthy criminal record and his failure to control his alcoholconsumption, despite many treatment referrals and three alcohol-related convictions (see e.g. People v Hunter, 62 AD3d1207, 1208 [2009]; People v Smith, 301 AD2d 744, 745 [2003]). Further, "[g]iventhe fact that defendant was initially allowed to plead to . . . reduced charge[s] andfailed to abide by the favorable conditions of the plea, and taking into consideration his criminalbehavior in violating his probation, we [discern] no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice" (People v Feliciano, 54 AD3d1131, 1132-1133 [2008]; seePeople v Gurrola, 43 AD3d 1230, 1231 [2007]; People v Grignon, 186 AD2d296 [1992], lv denied 81 NY2d 789 [1993]). Present—Smith, J.P., Fahey,Peradotto and Lindley, JJ.