Opinion
KA 00-01470
March 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered May 24, 2000, which revoked defendant's probation and imposed a sentence of imprisonment.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-McLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment revoking probation based upon a finding that he violated its conditions and resentencing him to an indeterminate term of incarceration of 1a to 4 years on the underlying conviction of grand larceny in the fourth degree (Penal Law § 155.30). In the posture of this appeal, the contention of defendant that Supreme Court erred in ordering him to pay restitution at the time of the original sentence of probation without affording him an opportunity to withdraw his guilty plea is not properly before us (see People v. Klinkowski, 281 A.D.2d 972, 973, lv denied 96 N.Y.2d 831; People v. Swank, 278 A.D.2d 861, lv denied 96 N.Y.2d 807; People v. Panek, 256 A.D.2d 1238, lv denied 93 N.Y.2d 856; People v. Holmes, 226 A.D.2d 1122, lv denied 88 N.Y.2d 966; see also CPL 450.30, [3]). The sentence imposed upon defendant's violation of probation is not unduly harsh or severe.