| People v Jones |
| 2017 NY Slip Op 02575 [148 AD3d 1807] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James C. Jones, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), renderedJanuary 12, 2015. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probationimposed upon his conviction of driving while intoxicated as a class E felony (Vehicle and TrafficLaw §§ 1192 [3]; 1193 [1] [c] [i] [A]), and sentencing him to an indeterminateterm of imprisonment of one to three years. We note at the outset that, contrary to the People'scontention, defendant's waiver of the right to appeal at the underlying plea proceeding does notpreclude our review of his contentions on this appeal following the revocation of his probation(see generally People v Williams,140 AD3d 1749, 1750 [2016], lv denied 28 NY3d 975 [2016]; People vRodriguez, 259 AD2d 1040, 1040 [1999]).
Defendant failed to preserve for our review his contention that County Court erred in failingto order an updated presentence report before sentencing defendant upon his admission toviolating probation (see People vStachnik, 101 AD3d 1590, 1592 [2012], lv denied 20 NY3d 1104 [2013]). Inany event, the court was sufficiently familiar with defendant's status and his conduct while onprobation that an updated report was not required to enable it to perform its sentencing function,inasmuch as the court was informed that defendant had pleaded guilty in another county to a newcharge of driving while intoxicated committed while he was on probation (see id. at1592; People v Perry, 278 AD2d 933, 933 [2000], lv denied 96 NY2d 866 [2001];cf. People v Klinkowski, 281 AD2d 972, 973 [2001], lv denied 96 NY2d 831[2001]). We further conclude that defendant was not denied effective assistance of counsel by hisattorney's failure to request an updated presentence report (see People v Williams, 114 AD3d 993, 994 [2014], lv denied23 NY3d 969 [2014]; see generallyPeople v Ward, 25 AD3d 727, 727 [2006], lv denied 7 NY3d 764 [2006]).Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Lindley,NeMoyer, Curran and Troutman, JJ.