Opinion
2014-02-26
The PEOPLE, etc., respondent, v. Charles WHITLOCK, appellant.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Appeal by the defendant from an amended judgment of the County Court, Orange County (De Rosa, J.), rendered October 3, 2012, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3).
ORDERED that the amended judgment is affirmed.
Since the defendant failed to appeal from the original judgment convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), he is jurisdictionally foreclosed from challenging the propriety of the original judgment, including his claim that a prior out-of-state conviction for driving while intoxicated was not a sufficient predicate to elevate the instant conviction to a class D felony offense ( see People v. Sansone, 65 A.D.3d 636, 637, 883 N.Y.S.2d 726;People v. Jackson, 63 A.D.3d 1178, 1179, 881 N.Y.S.2d 313;People v. Zafar R., 61 A.D.3d 897, 898, 876 N.Y.S.2d 877;People v. Oquendo, 286 A.D.2d 740, 730 N.Y.S.2d 452).
The defendant's waiver of his right to appeal, the validity of which he does not challenge on appeal, precludes review of his claim that the sentence imposed, upon his admission that he violated conditions of his probation, was excessive ( see People v. Emma, 101 A.D.3d 1146, 1147, 956 N.Y.S.2d 495;People v. Daly, 80 A.D.3d 776, 915 N.Y.S.2d 505;People v. Gorovoy, 309 A.D.2d 764, 765 N.Y.S.2d 275;People v. Miles, 268 A.D.2d 489, 490, 703 N.Y.S.2d 491). SKELOS, J.P., CHAMBERS, HALL and MILLER, JJ., concur.