| People v Waite |
| 2014 NY Slip Op 05216 [119 AD3d 1086] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vJames Waite Jr., Appellant. |
Erin C. Morigerato, Albany, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 3, 2011, convicting defendant upon his plea of guilty ofthe crime of criminal possession of stolen property in the fourth degree.
In October 2009, defendant was indicted and charged with one count of criminalpossession of stolen property in the fourth degree. Defendant pleaded guilty to thecharged crime in February 2010—with the understanding that he would be placedon interim probation supervision for a period of one year and, if successful, wouldreceive a sentence of probation. The matter then was adjourned for sentencing.[FN1]Based upon informationcontained in the presentence investigation report, County Court ordered that defendant bedrug tested. When defendant was caught attempting to substitute a urine sample andthereafter tested positive for cocaine and opiates, County Court revoked the underlyingplea agreement and, in April 2010, sentenced defendant to 1
In July 2010, County Court granted defendant's pro se CPL article 440 motion tovacate the enhanced prison sentence and placed defendant on interim probationsupervision for one year. [*2]In conjunction therewith,defendant was provided with a copy of the conditions of his supervision, which hesigned and acknowledged. Defendant also was advised that if he complied with suchterms and conditions, he would be sentenced to five years of probation; if he failed tocomply, he would be sentenced to the period of imprisonment previously imposed.Thereafter, in July 2011, County Court was advised that defendant had violated theconditions of his interim probation supervision by, among other things, failing to reportto his probation officer and receiving an "incomplete" discharge with respect to hisoutpatient addiction treatment, and a bench warrant was issued. When defendant wasreturned to County Court on the bench warrant in October 2011, he readily admitted thathe initially had "a little problem with the outpatient [treatment] thing" and, prior to theexpiration of the interim probation supervision, "just stopped going to probation." As aresult, County Court sentenced defendant to a prison term of 1
We affirm. Defendant initially contends that his plea was involuntary becauseCounty Court failed to apprise him of the terms and conditions of his interim probationsupervision. Defendant's initial—and ultimately successful—CPL article440 motion made no mention of this alleged defect,[FN2]however, and the record does not reflectthat, subsequent to the July 2010 court appearance at which such terms and conditionswere imposed, defendant moved to withdraw his plea or vacate the judgment ofconviction upon this ground. Accordingly, this issue is not preserved for our review (see People v Musser, 106AD3d 1334, 1335 [2013], lv denied 22 NY3d 997 [2013]). In any event, areview of County Court's July 2010 colloquy with defendant reveals that defendant wasadvised as to the length of his interim probation supervision, executed anacknowledgment of the terms and conditions thereof and was informed that his failure toabide by such conditions would result in the imposition of a prison sentence (see People v Wissert, 85 AD3d1633, 1633 [2011], lv denied 17 NY3d 956 [2011]).
As to the propriety of the enhanced sentence imposed, to the extent that defendantcontends that County Court failed to comply with the provisions of CPL 410.70, we notethat those provisions "do not apply where, as here, there has been no sentence ofprobation. Indeed, interim probation supervision is imposed prior to sentencing. . . [and, therefore,] the presentence procedures set forth in CPL 400.10apply" (People v Rollins, 50AD3d 1535, 1536 [2008], lv denied 10 NY3d 939 [2008] [citationsomitted]). In this regard, although defendant now contends that County Court failed toconduct a sufficient inquiry into the circumstances surrounding his alleged violation ofthe conditions of his interim probation supervision, thereby depriving him of ameaningful opportunity to respond thereto, the record does not reflect that defendantrequested a hearing on this issue or moved to withdraw his plea upon this ground.Accordingly, this argument is unpreserved for our review (see People v Wachtel, 117AD3d 1203, 1203 [2014]; People v Paneto, 112 AD3d 1230, 1231 [2013]; People v Stubbs, 75 AD3d664, 664 [2010]; People vSaucier, 69 AD3d 1125, 1125-1126 [2010]). In any event, we are satisfied that,consistent with the requirements of CPL 400.10 and People v Outley (80 NY2d702, 713 [1993]), County Court was possessed of sufficient reliable and accurateinformation—most notably, defendant's candid admission that he "just stoppedgoing to probation"—to warrant imposition of the enhanced sentence and that,prior thereto, defendant was afforded an [*3]opportunityto dispute and/or respond to the alleged violation of the conditions of his interimprobation supervision (see People v Wachtel, supra; People v Purcelle, 107 AD3d1050, 1051 [2013]; Peoplev O'Neill, 76 AD3d 1143, 1144 [2010], lv denied 15 NY3d 954 [2010];People v Saucier, 69 AD3d at 1126). Accordingly, County Court did not abuse itsdiscretion in imposing the enhanced sentence without first conducting a hearing.
Finally, to the extent that defendant now asserts that he was not timely sentencedwithin one year of the entry of his guilty plea (see CPL 390.30 [6]), defendantfailed to raise any objection in this regard before County Court and, therefore, this issueis not properly before us (see People v Dixon, 295 AD2d 699, 700 [2002], lvdenied 98 NY2d 709 [2002]). Defendant's remaining contentions, including hisassertion that the sentence imposed is harsh and excessive, have been examined andfound to be lacking in merit.
Peters, P.J., Stein, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although the pleaagreement also contained a waiver of defendant's right to appeal, the People concede thatsuch waiver was invalid.
Footnote 2:Defendant's CPL article440 motion was premised upon County Court's failure to inform him that an unsuccessfuldrug test would void the underlying plea agreement and result in the imposition of aprison sentence.