PEOPLE v. NAZARIO (1998)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Victor NAZARIO, Defendant-Appellant.

Decided: September 29, 1998

Before SULLIVAN, J.P., and NARDELLI, RUBIN, TOM and MAZZARELLI, JJ.

James D. Gibbons, for respondent. Gordon F. Wylie, for defendant-appellant.

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered January 13, 1995, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree, and sentencing him to a term of 41/212 years to life, unanimously affirmed.

Defendant's claim that he was sentenced without the benefit of a pre-sentence report, as required by CPL § 390.20(1), is based solely on the absence of any reference to this report in the record. Such absence is insufficient to rebut the presumption of regularity accorded to judicial proceedings (People v. Kalakowski, 120 A.D.2d 763, 501 N.Y.S.2d 499, lv. denied 68 N.Y.2d 669, 505 N.Y.S.2d 1034, 496 N.E.2d 692). A pre-sentence report was ordered by the court and prepared by the Department of Probation prior to the sentencing date, and it is presumed that defendant was lawfully sentenced on the basis of this report (People v. Martinez, 237 A.D.2d 122, 655 N.Y.S.2d 345, lv. denied 90 N.Y.2d 860, 661 N.Y.S.2d 187, 683 N.E.2d 1061).

MEMORANDUM DECISION.

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