THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIAM CAREY DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant was convicted upon a plea of guilty of, inter alia, driving while intoxicated as a class E felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ) and was sentenced to a term of shock probation.   He subsequently admitted that he violated a condition of probation and now appeals from a judgment revoking his sentence of shock probation and imposing a sentence of imprisonment.   Defendant failed to preserve for our review his contention that County Court erred in failing to order an updated presentence report before sentencing him following the revocation of probation (see People v. Obbagy, 56 AD3d 1223, lv denied 11 NY3d 928;  People v. Pomales, 37 AD3d 1098, lv denied 8 NY3d 949).   In any event, that contention lacks merit.   The declaration of delinquency and uniform court report “ ‘constituted the functional equivalent of an updated [presentence] report’ “ (People v. Fairman, 38 AD3d 1346, 1347, lv denied 9 NY3d 865;  see People v. Somers, 280 A.D.2d 925, lv denied 96 N.Y.2d 806).   Moreover, the same judge presided over both the original proceedings and the revocation proceedings, and thus “[t]he court was ‘fully familiar with any changes in defendant's status, conduct or condition’ since the original sentencing” (People v. Howard, 254 A.D.2d 701, lv denied 93 N.Y.2d 853;  see People v. Perry, 278 A.D.2d 933, lv denied 96 N.Y.2d 866;  cf.  People v. Klinkowski, 281 A.D.2d 972, lv denied 96 N.Y.2d 831).

Defendant further contends that the court should have permitted him to withdraw his admission to the violation of probation because the court never informed him that the sentence of imprisonment was an agreed-upon sentence and there is no indication in the record that defense counsel informed him of the terms of the agreement.   To the extent that defendant's contention may be construed as a contention that his admission was not knowingly, voluntarily or intelligently entered, that contention is not preserved for our review and does not fall within the rare exception to the preservation requirement (see People v. Springstead, 57 AD3d 1397, 1398, lv denied 12 NY3d 788;  People v. Barra, 45 AD3d 1393, 1393–1394, lv denied 10 NY3d 761;  see generally People v. Lopez, 71 N.Y.2d 662, 666).   Insofar as defendant contends that defense counsel failed to inform him of the terms of the agreement, that contention is based on material outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v. Shorter, 305 A.D.2d 1070, 1071, lv denied 100 N.Y.2d 566).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court