Opinion
2017–06076 Ind. No. 15–00738
03-20-2019
The PEOPLE, etc., Respondent, v. Bianca KING, Appellant.
Mark Diamond, New York, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Mark Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant from an amended judgment of the County Court, Westchester County (Anne E. Minihan, J.), rendered April 18, 2017, revoking a sentence of probation previously imposed by the same court (Helen M. Blackwood, J.), upon a finding that she had violated a condition thereof, upon her admission, and resentencing her to an indeterminate term of imprisonment of two to six years upon her previous conviction of criminal possession of a weapon in the third degree.
ORDERED that the amended judgment is affirmed.
The defendant's contention regarding the sufficiency of the factual allocution of her admission to a violation of a condition of a previously imposed sentence of probation is unpreserved for appellate review (see People v. Beach, 118 A.D.3d 905, 987 N.Y.S.2d 451 ; People v. Rogers, 45 A.D.3d 786, 847 N.Y.S.2d 590 ; People v. Carden, 27 A.D.3d 573, 810 N.Y.S.2d 365 ). The exception to the preservation requirement is not applicable here because the factual recitation did not clearly cast doubt on the defendant's violation or call into question the voluntariness of her admission (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Nash, 38 A.D.3d 684, 832 N.Y.S.2d 593 ; People v. Rizzo, 38 A.D.3d 571, 832 N.Y.S.2d 586 ). In any event, the record establishes that the defendant knowingly, voluntarily, and intelligently admitted that she violated a condition of her probation (see CPL 410.70[3] ; People v. Smith, 255 A.D.2d 343, 681 N.Y.S.2d 548 ; People v. Migneco, 196 A.D.2d 849, 603 N.Y.S.2d 753 ; People v. Hunter, 194 A.D.2d 628, 599 N.Y.S.2d 992 ).
Upon finding that the defendant violated a condition of her probation, the County Court was authorized to revoke probation and sentence the defendant to an authorized term of imprisonment (see CPL 410.70[5] ; People v. Beach, 118 A.D.3d 905, 987 N.Y.S.2d 451 ).
Contrary to the defendant's contention, her waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Seaberg 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ), and, thus, precludes review of her claim that the sentence imposed upon her violation of probation was excessive (see People v. Barnes, 159 A.D.3d 1001, 73 N.Y.S.3d 591 ; People v. Guzman, 127 A.D.3d 1108, 5 N.Y.S.3d 880 ; People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877 ; People v. Pook, 73 A.D.3d 952, 899 N.Y.S.2d 872 ).
SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.