PEOPLE v. BAKER (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of criminal sexual act in the third degree (Penal Law former § 130.40 [2]). Under the terms of defendant's plea agreement, he was placed on a one-year period of interim probation and, if he successfully completed it, defendant would be permitted to withdraw his plea and instead plead guilty to one count of endangering the welfare of a child (§ 260.10 [1]). The People alleged that defendant violated the conditions of his interim probation and, after a hearing, defendant's interim probation was revoked and he was sentenced to a term of incarceration.

As defendant contends, and the People correctly concede, defendant's “waiver of the right to appeal does not encompass his contention that [County] Court erred in imposing an enhanced term of incarceration based on postplea conduct” (People v. Lopez, 204 A.D.3d 1529, 1529, 165 N.Y.S.3d 787 [4th Dept. 2022]; see People v. Streeter, 71 A.D.3d 1463, 1464, 897 N.Y.S.2d 358 [4th Dept. 2010], lv denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010]). However, we reject defendant's contention that the People were required to establish, pursuant to CPL 410.70 (3), that defendant violated the conditions of his interim probation by a preponderance of the evidence. Contrary to defendant's contention, “ ‘[t]he procedures set forth in CPL 410.70 do not apply where, as here, there has been no sentence of probation’ ” (People v. McIntosh, 213 A.D.3d 1266, 1267, 182 N.Y.S.3d 848 [4th Dept. 2023]; People v. Rollins, 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [4th Dept. 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008]). Rather, “because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply” (People v. Boje, 194 A.D.3d 1367, 1368, 148 N.Y.S.3d 561 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 687, 172 N.E.3d 799 [2021]; see Rollins, 50 A.D.3d at 1536, 856 N.Y.S.2d 417), notwithstanding the fact that “[the c]ourt and the parties ․ improperly characterized the procedure to revoke the interim probation supervision as a violation of probation hearing” (Rollins, 50 A.D.3d at 1535-1536, 856 N.Y.S.2d 417). Consistent with CPL 400.10 (3), the court here conducted a summary hearing that was sufficient to “enable the court to determine that defendant failed to comply with the terms and conditions of his interim probation supervision” (Rollins, 50 A.D.3d at 1536, 856 N.Y.S.2d 417) and, in any event, the evidence adduced was sufficient even if viewed under the standard set forth in CPL 410.70 (3).

Defendant contends that, even if he violated the conditions of his interim probation, the court abused its discretion in revoking his interim probation and imposing a sentence on the pleaded-to offense of criminal sexual act in the third degree (Penal Law former § 130.40 [2]), because a conviction of that offense results in statutorily mandated registration under the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.). Defendant maintains that the court had discretion to continue his interim probation and, presumably, to allow him to withdraw his plea to criminal sexual act in the third degree and plead instead to an offense that does not require SORA registration. However, defendant never requested that the court exercise such discretion, nor did defendant move to withdraw his plea, and therefore defendant's contention is not preserved for our review (see generally People v. Edwards, 239 A.D.3d 1478, 1478, 234 N.Y.S.3d 889 [4th Dept. 2025], lv denied 44 N.Y.3d 1010, 244 N.Y.S.3d 491, 271 N.E.3d 693 [2025]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [c] [3]).

We have reviewed defendant's remaining contention and conclude that it lacks merit.