PEOPLE v. DEXTER (2010)

 Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of criminal contempt in the first degree (Penal Law § 215.51[b][v] ).  County Court sentenced him to a term of incarceration based on his admission that he violated the conditions of his probation.   Defendant's contentions with respect to the plea proceeding underlying the original judgment are “not properly before us inasmuch as there is no notice of appeal from the original judgment in the record before us, nor is there otherwise any indication in the record that an appeal from that judgment was perfected” (People v. Brown, 307 A.D.2d 759, 762 N.Y.S.2d 547;  see People v. Lawlor, 49 A.D.3d 1270, 852 N.Y.S.2d 894, lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409;  People v. Parente, 4 A.D.3d 793, 771 N.Y.S.2d 455).   We agree with defendant that, “[a]lthough defendant's waiver of the right to appeal encompassed the original sentence of probation ․, it did not encompass the [sentence imposed] following defendant's violation of probation” (People v. Rodriguez, 259 A.D.2d 1040, 689 N.Y.S.2d 895;  see People v. Cheatham, 278 A.D.2d 889, 718 N.Y.S.2d 913, lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78).   Contrary to defendant's further contention, however, the sentence imposed following the violation of probation is not unduly harsh or severe.

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

MEMORANDUM: