People v Alexander

2013 NY Slip Op 06400 [110 AD3d 1111]

October 3, 2013

Appellate Division, Third Department

As corrected through Wednesday, November 27, 2013

The People of the State of New York, Respondent, vMarion L. Alexander, Appellant.

—[*1]Richard E. Cantwell, Plattsburgh, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.

Lahtinen, J.P. Appeal from a judgment of the County Court of Clinton County(Ryan, J.), rendered May 3, 2011, which revoked defendant's probation and imposed asentence of imprisonment.

In February 2007, after pleading guilty to grand larceny in the fourth degree andcriminal possession of a controlled substance outside of the original container, defendantwas sentenced to 45 days in jail and five years of probation. In 2009, defendant admittedto violating her probation and it was thereafter modified to include the requirement thatshe successfully complete the Clinton County Drug Court program, with theunderstanding that if she failed to complete the program, her probation would be revokedand she would be resentenced to a prison term of 11/3 to 4 years. In May2011, defendant admitted to violating her probation and her drug court programagreement and County Court revoked defendant's probation and resentenced her to aprison term of 11/3 to 4 years. Defendant appeals.

We affirm. Defendant's contention that County Court abused its discretion inresentencing her without an updated presentence investigation report is not preserved forour review, inasmuch as our review of the record indicates that she failed to request anupdated report, make an objection during resentencing or move to vacate the resentence(see People v Warren, 87AD3d 1185, 1186 [2011]; People v Clark, 80 AD3d 1079, 1079 [2011]; People v Henkel, 37 AD3d873, 873 [2007], lv denied 8 NY3d 985 [2007]). Similarly, the lack of an[*2]indication in the record that defendant moved towithdraw her plea or vacate the judgment of conviction renders her claim that she wasdenied the effective assistance of counsel unpreserved for our review (see People vHenkel, 37 AD3d at 873; People v Bullis, 23 AD3d 835, 836 [2005], lvdenied 6 NY3d 774 [2006]). Finally, as to defendant's claim that her resentence isharsh and excessive, we find no extraordinary circumstances nor any abuse of discretionwarranting a reduction of the resentence in the interest of justice (see People v Fitzgerald, 100AD3d 1268, 1269 [2012], lv denied 20 NY3d 1011 [2013]; People v Wells, 69 AD3d1228, 1229 [2010]).

Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.