| People v Swick |
| 2017 NY Slip Op 00795 [147 AD3d 1346] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DonaldSwick, Appellant. |
Jeannie D. Michalski, Conflict Defender, Geneseo, for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedJuly 26, 2011. The judgment revoked defendant's sentence of probation and imposed a sentenceof imprisonment.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking his sentence of probationimposed upon his conviction, following his plea of guilty, of attempted use of a child in a sexualperformance (Penal Law §§ 110.00, 263.05), and imposing a sentence ofimprisonment. "Inasmuch as defendant has completed serving the sentence imposed, hiscontention that the sentence is unduly harsh and severe has been rendered moot" (People v Anderson, 66 AD3d1431, 1431 [2009], lv denied 13 NY3d 905 [2009] [internal quotation marksomitted]; see People v Benson, 6AD3d 1173, 1173 [2004], lv denied 3 NY3d 636 [2004]).
Defendant further contends that County Court violated his due process rights by revoking hisprobationary sentence based on a de minimis violation of the terms and conditions of probation.At no time during the probation revocation proceedings did defendant raise any challenge to theallegedly "de minimis" nature of the violation or raise any due process challenge to theproceeding. We thus conclude that defendant's contention is not preserved for our review (see People v Ebert, 18 AD3d 963,964 [2005]; People v Villar, 10AD3d 564, 564 [2004], lv denied 3 NY3d 761 [2004]; see generally CPL470.05 [2]). In any event, we conclude that defendant's admitted "violation of probation was[neither] de minimis nor a mere technicality" (People v Cummings, 134 AD3d 1566, 1566 [2015], lv denied27 NY3d 995 [2016]; see People v Burton, 234 AD2d 972, 973 [1996], lv denied89 NY2d 1033 [1997]). Present—Centra, J.P., Lindley, NeMoyer, Curran andTroutman, JJ.