Opinion
03-31-2017
The PEOPLE of the State of New York, Respondent, v. James C. JONES, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for defendant-appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for defendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for respondent.
MEMORANDUM:Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ), and sentencing him to an indeterminate term of imprisonment of one to three years. We note at the outset that, contrary to the People's contention, defendant's waiver of the right to appeal at the underlying plea proceeding does not preclude our review of his contentions on this appeal following the revocation of his probation (see generally People v. Williams, 140 A.D.3d 1749, 1750, 33 N.Y.S.3d 644, lv. denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 ; People v. Rodriguez, 259 A.D.2d 1040, 1040, 689 N.Y.S.2d 895 ).
Defendant failed to preserve for our review his contention that County Court erred in failing to order an updated presentence report before sentencing defendant upon his admission to violating probation (see People v. Stachnik, 101 A.D.3d 1590, 1592, 956 N.Y.S.2d 777, lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 ). In any event, the court was sufficiently familiar with defendant's status and his conduct while on probation 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 new charge of driving while intoxicated committed while he was on probation (see id. at 1592, 956 N.Y.S.2d 777 ; People v. Perry, 278 A.D.2d 933, 933, 718 N.Y.S.2d 768, lv. denied 96 N.Y.2d 866, 730 N.Y.S.2d 41, 754 N.E.2d 1124 ; cf. People v. Klinkowski, 281 A.D.2d 972, 973, 723 N.Y.S.2d 777, lv. denied 96 N.Y.2d 831, 729 N.Y.S.2d 452, 754 N.E.2d 212 ). We further conclude that defendant was not denied effective assistance of counsel by his attorney's failure to request an updated presentence report (see People v. Williams, 114 A.D.3d 993, 994, 979 N.Y.S.2d 871, lv. denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 ; see generally People v. Ward, 25 A.D.3d 727, 727, 807 N.Y.S.2d 308, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, and TROUTMAN, JJ., concur.