| People v Warriner |
| 2012 NY Slip Op 06327 [98 AD3d 1190] |
| September 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Steven M.Warriner, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 4, 2011, which revoked defendant's probation and imposed asentence of imprisonment.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of acontrolled substance in the fourth degree in satisfaction of a superior court information and wassentenced to five years of probation and 90 days in jail. While defendant was serving theprobation portion of his sentence, a violation of probation petition was filed against him. CountyCourt issued an arrest warrant and, over a year later, defendant was located at the OnondagaCounty Jail. Defendant ultimately admitted to violating the terms of his probation by failing toreport, failing to complete substance abuse counseling and committing a crime while onprobation. In conjunction with his admission, the court sentenced defendant to an agreed-uponprison term of three years plus 1½ years of postrelease supervision, to run concurrently tothe term he was serving for his conviction in Onondaga County. Defendant now appeals.
Defendant argues that an updated presentence investigation report should have been obtainedand asserts that he was denied the effective assistance of counsel. Although defendant'schallenges are not precluded by his appeal waiver entered in connection with the originalconviction (see People v Ross, 67AD3d 1130, 1130 [2009]; People vRowland, 11 AD3d 825, [*2]825 [2004]), based uponthe record before us, it appears that defendant failed to preserve the issues now raised by anappropriate motion to withdraw the plea or vacate the judgment (see People v Henkel, 37 AD3d873, 873 [2007], lv denied 8 NY3d 985 [2007]; People v Bullis, 23 AD3d 835, 836 [2005], lv denied 6NY3d 774 [2006]). Nor did defendant make a request for an updated presentence investigationreport or raise an objection at sentencing (see People v Miller, 90 AD3d 1416, 1417 [2011], lv denied18 NY3d 960 [2012]; People vRuff, 50 AD3d 1167, 1168 [2008]). Finally, as to his claim that his sentence is harsh andexcessive, defendant has not cited any extraordinary circumstances or an abuse of County Court'sdiscretion that would warrant a reduction of the sentence (see People v Miller, 90 AD3dat 1417; People v Peterson, 7 AD3d882, 882 [2004]).
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.