PEOPLE v. HENDRIE (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Keith Bruno, J.), rendered January 9, 2023, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to criminal nuisance in the first degree and was sentenced in August 2021 to six months in jail followed by five years of probation – the latter of which was subject to various terms and conditions.¹  In April 2022, a violation of probation petition was filed alleging that defendant, among other things, failed to report on two occasions, neglected to maintain an independent residence, twice tested positive for cocaine, was noncompliant with her substance abuse treatment and was in arrears with respect to the fine/surcharge previously imposed in connection with her underlying conviction.  Following her arraignment on the violation petition, defendant was released on her own recognizance in anticipation of her securing placement in an inpatient treatment facility.  When defendant failed to appear for a scheduled conference in June 2022, a bench warrant was issued, and defendant ultimately was returned to County Court in October 2022.  After being advised of her right to a hearing and the maximum sentence that could be imposed, defendant elected to admit to violating the subject terms and conditions of her probation with the understanding that sentencing would be left to the discretion of County Court.  County Court thereafter revoked defendant's probation and sentenced her to a prison term of 1 to 4 years.  This appeal followed.

We affirm.  Defendant's challenge to the voluntariness of her admission is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Lamica, 224 A.D.3d 936, 937, 204 N.Y.S.3d 608 [3d Dept. 2024];  People v. Curry, 210 A.D.3d 1203, 1204, 177 N.Y.S.3d 806 [3d Dept. 2022];  People v. Purdie, 205 A.D.3d 1225, 1225, 168 N.Y.S.3d 190 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 849, 193 N.E.3d 514 [2022]), and the record reveals no basis upon which to invoke the narrow exception to the preservation requirement (see People v. Recore, 211 A.D.3d 1241, 1243, 179 N.Y.S.3d 822 [3d Dept. 2022], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 677, 211 N.E.3d 1130 [2023];  People v. Purdie, 205 A.D.3d at 1225, 168 N.Y.S.3d 190).  We reach a similar conclusion regarding defendant's ineffective assistance of counsel claim – insofar as it impacts the voluntariness of her admission (see People v. Wells, 217 A.D.3d 1277, 1278, 192 N.Y.S.3d 314 [3d Dept. 2023];  People v. Feltz, 190 A.D.3d 1027, 1028–1029, 138 N.Y.S.3d 727 [3d Dept. 2021];  People v. Peterson, 147 A.D.3d 1148, 1149, 46 N.Y.S.3d 436 [3d Dept. 2017]).  To the extent that defendant contends that counsel failed to properly investigate potential defenses or advise defendant regarding the consequences of waiving a hearing, such claims involve matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Curry, 210 A.D.3d at 1204, 177 N.Y.S.3d 806).  Finally, upon due consideration of all of the relevant factors, we do not find the sentence imposed by County Court to be unduly harsh or severe (see CPL 470.15[6][b]) – notwithstanding the fact that it was the maximum term of imprisonment that could be imposed for a class E felony (see Penal Law § 70.00[2][e];  [3][b]).  Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant's appeal from the resulting judgment of conviction is the subject of a separate appeal (People v. Hendrie, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 2797877 [3d Dept. 2025] [decided herewith]).

Reynolds Fitzgerald, J.

Pritzker, J.P., Lynch, Fisher and Mackey, JJ., concur.