| People v Hayhurst |
| 2013 NY Slip Op 05422 [108 AD3d 1233] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAndrew Hayhurst, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered March 16, 2012. The judgment revoked defendant's sentence of probationand imposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence to a determinateterm of imprisonment of 3½ years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence ofprobation imposed upon his conviction of attempted burglary in the second degree (PenalLaw §§ 110.00, 140.25 [2]) and sentencing him to a determinate term ofincarceration of seven years. Defendant failed to preserve for our review his contentionthat the sentence should be vacated because he was sentenced without a complete andaccurate updated presentence investigation report (see People v Gianni, 94 AD3d 1477, 1478 [2012], lvdenied 19 NY3d 973 [2012]; People v Carey, 86 AD3d 925, 925 [2011], lvdenied 17 NY3d 814 [2011]; People v Ruff, 50 AD3d 1167, 1168 [2008]). In any event,defendant's contention is without merit. We agree with defendant, however, that thesentence is unduly harsh and severe under the circumstances of this case, and wetherefore modify the sentence as a matter of discretion in the interest of justice to adeterminate term of imprisonment of 3½ years (see generally CPL 470.15[6] [b]). Present—Smith, J.P., Fahey, Peradotto, Carni and Lindley, JJ.