Opinion
No. KA 07-00918.
April 25, 2008.
Appeal from a judgment of the Oswego County Court (Walter W Hafner, Jr., J.), rendered June 21, 2005. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
CHRISTOPHER HAMMOND, COOPERSTOWN, FOR DEFENDANT-APPELLANT.
DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (DONALD E. TODD OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of assault in the second degree (Penal Law § 120.05) and sentencing him to a four-year term of imprisonment. Defendant failed to preserve for our review his contention that he was entitled to specific performance of County Court's previous offer of a two-year term of imprisonment, which was conditioned upon defendant's admission to a violation of probation and no further violations of the conditions of defendant's probation prior to sentencing ( see generally People v McCray, 251 AD2d 135, lv denied 92 NY2d 901). In any event, "the record establishes that [the c]ourt made no sentencing promise . . . in the event that defendant [further] violated the conditions of his probation" ( People v Glen, 278 AD2d 834, lv denied 96 NY2d 800; see also People v Esteves, 286 AD2d 342, 342-343, lv denied 97 NY2d 681). Contrary to the further contention of defendant, he was not entitled to a violation hearing prior to being sentenced inasmuch as he admitted that he further violated the conditions of his probation ( see generally People v Eveland, 42 AD3d 755, lv denied 9 NY3d 961; People v Hope, 32 AD3d 1115, 1116). In addition, the court was not required to order an updated presentence report because it relied on materials from the Probation Department, which "'constituted the functional equivalent of an updated [presentence] report'" ( People v Fairman, 38 AD3d 1346, 1347, lv denied 9 NY3d 865; see People v Somers, 280 AD2d 925, lv denied 96 NY2d 806).