Opinion
1271 KA 14-01061.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Dwayne HANDLEY, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Dwayne Handley, Defendant–Appellant Pro Se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Dwayne Handley, Defendant–Appellant Pro Se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.033 ) and sentencing him to a determinate term of imprisonment of seven years plus three years of postrelease supervision. We reject defendant's contention that the sentence is unduly harsh and severe. Although defendant was sentenced to the maximum sentence permitted by law and has a minimal criminal history, he repeatedly fired a gun at another person, and one of the errant bullets went through the window of a nearby home. Moreover, shortly after being placed on probation, defendant essentially ignored all of the terms and conditions of probation and then absconded for the next year and a half. Under the circumstances, we perceive no basis upon which to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.156 [b]; see generally People v. Leggett, 101 A.D.3d 1694, 1695, 956 N.Y.S.2d 385, lv. denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535).
Defendant's contentions in his pro se supplemental brief that his plea was involuntarily entered and that he was deprived of effective assistance of counsel at the time of the plea are not properly before us. The only notice of appeal in the record is from the judgment entered upon sentencing for the violation of probation, and there is no notice of appeal from the underlying judgment of conviction (see People v. Postula, 50 A.D.3d 1581, 1581, 856 N.Y.S.2d 420, lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411; People v. Parente, 4 A.D.3d 793, 793–794, 771 N.Y.S.2d 455).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, and WHALEN, JJ., concur.