| People v Johnston |
| 2016 NY Slip Op 05187 [140 AD3d 1528] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSteven T. Johnston, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Franklin County(Richards, J.), rendered March 18, 2014, which resentenced defendant following hisconviction of the crime of assault in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to assault in thesecond degree and was sentenced, in 2009, to five years of probation with the first 180days to be served in jail. In 2013, a petition was filed charging defendant with violatingseveral conditions of his probation. Pursuant to a negotiated agreement, defendantwaived a hearing and admitted that he had violated a condition of probation by failing toobtain a required substance abuse evaluation. Consistent with that agreement, CountyCourt vacated defendant's probation and resentenced him to a period of intermittentimprisonment of 10 months of weekends in jail. Defendant was subsequently arrested ona warrant that was issued after he failed to report to jail to serve his intermittent sentenceon two weekends in February 2014. After a two-day inquiry, at which defendant wasafforded an opportunity to be heard and to submit documentary evidence, the court heldthat defendant had failed to report to jail on both weekends and had not furnished areasonable explanation for such failure (see Penal Law § 85.05 [1][b]). The court resentenced defendant to a prison term of three years to be followed bythree years of postrelease supervision. Defendant now appeals.
Initially, defendant primarily directs his arguments on appeal to his 2013 guilty pleato the violation of probation and the resentence imposed thereon. However, defendantdid not file a [*2]timely appeal from that judgment, andhis notice of appeal filed here on April 17, 2014 is untimely as to that 2013 judgment(see CPL 460.10 [1] [a]; People v Setterlund, 137 AD3d 1420, 1421 [2016]).Accordingly, defendant's claims directed at his 2013 plea to the probation violation andthe resentence are not properly before this Court.
Next, defendant argues that the sentence imposed by County Court upon itsdetermination that he had violated the intermittent sentence was harsh and excessive. Anintermittent sentence is "revocable" upon a finding that a defendant violated its terms(Penal Law § 85.00 [1]; see Penal Law § 85.05 [1] [b];People v Dick, 106 AD3d1332, 1333 [2013]). Here, after County Court imposed a sentence of probation in2009 upon defendant's guilty plea to assault in the second degree, a violent class Dfelony (see Penal Law §§ 70.02 [1] [c]; 120.05 [1]), headmittedly violated his probation in 2013 and thereafter also violated his intermittentsentence in 2014 by failing to report on two consecutive weekends to serve his time injail. County Court considered the relevant sentencing factors, including defendant'sproffered reasons for failing to report to jail. Under these circumstances, we are notpersuaded that the three-year prison sentence, which was less than the maximumpotential prison sentence of 2 to 7 years (see Penal Law§§ 60.05 [5]; 70.02 [3] [c]), was harsh or excessive. Further, thethree-year term of postrelease supervision was authorized and, contrary to defendant'sclaim, properly pronounced by the court at the resentencing (see Penal Law§§ 70.00 [6]; 70.45 [2] [e]). In view of defendant's history ofnoncompliance and the fact that he could have been sentenced to a much longer prisonterm, we discern no basis upon which to modify that term of postrelease supervision (see People v Williams, 126AD3d 1181, 1182 [2015], lv denied 25 NY3d 1209 [2015]).
Finally, defendant's claim that County Court erred in imposing sentence withoutrequesting an updated sentencing report is unpreserved, given his failure to request anupdated report or to object at sentencing (see People v Miller, 90 AD3d 1416, 1417 [2011], lvdenied 18 NY3d 960 [2012]). In any event, the record establishes that defendant wasgiven ample opportunity to address the relevant sentencing factors and that the court wassufficiently aware of his "intervening history" (People v Ruff, 50 AD3d 1167, 1168 [2008]).
Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.