| People v Gibbons |
| 2012 NY Slip Op 08892 [101 AD3d 1615] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CynthiaGibbons, Also Known as Cynthia Bulinski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered April 25,2012. The judgment convicted defendant, upon her plea of guilty, of scheme to defraud in thefirst degree and attempted grand larceny in the second degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, ofone count of scheme to defraud in the first degree (Penal Law § 190.65 [1] [b]) and threecounts of attempted grand larceny in the second degree (§§ 110.00, 155.40 [1]).Defendant contends that she was denied due process at sentencing because County Court reliedon improper information in the presentence investigation report (PSI), i.e., statements from analleged victim regarding facts outside of the indictment. To the extent that defendant's contentionsurvives her valid waiver of the right to appeal (see People v Dimmick, 53 AD3d 1113, 1113 [2008], lv denied11 NY3d 831 [2008]; People vAgha, 43 AD3d 1383, 1383-1384 [2007]; see generally People v Seaberg, 74NY2d 1, 9 [1989]), we reject that contention. The sentencing transcript establishes thatthe court did not rely upon the allegedly improper material included in the PSI in sentencingdefendant (see Dimmick, 53 AD3d at 1113; People v Henderson, 305 AD2d 940,942 [2003], lv denied 100 NY2d 582 [2003]; People v Anderson, 184 AD2d 922,923 [1992], lv denied 80 NY2d 901 [1992]). Indeed, the court granted defendant'srequest to redact any references to the challenged material from the PSI and stated that it would"not consider" that information (seePeople v Paragallo, 82 AD3d 1508, 1509-1510 [2011]; People v Hinkhaus, 194AD2d 1043, 1043-1044 [1993]). Defendant's further contention that the PSI was "tainted" in itsentirety by the inclusion of the allegedly improper material and thus that the court should haveordered the preparation of a new report is unpreserved for our review inasmuch as she did notseek such relief from the court (see generally CPL 470.05 [2]; People v Williams, 94 AD3d1527, 1527 [2012]; People v Karlas, 208 AD2d 767, 767 [1994]).
Finally, defendant's contention that the court improperly considered a letter from anotheralleged victim in determining defendant's sentence is without merit. "[D]efendant has made noshowing, nor does the record reveal, that the sentencing court relied upon the alleged prejudicialinformation in arriving at defendant's sentence" (People v Redman, 148 AD2d 966, 967[1989], lv denied 74 NY2d 745 [1989]; see also People v Young, 186 AD2d1072, 1072 [1992]; People v Whalen, 99 [*2]AD2d 883,884 [1984]). We note that the letter was not contained in the PSI, and the court made noreference to it during sentencing. Present—Centra, J.P., Peradotto, Sconiers, Valentino andMartoche, JJ.