PEOPLE v. MOORE (1999)

Appeal by the defendant from an amended judgment of the County Court, Orange County (Berry J.), rendered April 3, 1996, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal sale of a controlled substance in the third degree.

ORDERED that the amended judgment is affirmed.

 The defendant failed to appeal from the original judgment.   Thus, his challenge to the plea proceeding is jurisdictionally foreclosed (see, People v. McMillan, 228 A.D.2d 166, 643 N.Y.S.2d 984;  People v. Serrano, 203 A.D.2d 395, 612 N.Y.S.2d 916).   Moreover, his failure to move to withdraw that plea or to vacate the judgment and sentence entered thereon renders his challenge unpreserved for appellate review (see, People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

 By admitting that he had violated his probation, by expressly waiving the right to a hearing thereon, and by failing to challenge the validity of his admission to a violation of probation, the defendant has waived and has failed to preserve for appellate review his claim that a hearing on the violation of probation was required before resentencing (see, People v. Justin ZZ, 238 A.D.2d 810, 656 N.Y.S.2d 519;  People v. Petersen, 53 A.D.2d 935, 936, 385 N.Y.S.2d 398;  see also, People v. Mattison, 232 A.D.2d 676, 677, 648 N.Y.S.2d 353).

The defendant received the effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 The term of imprisonment imposed is not excessive.   The court was fully aware of the defendant's drug problem and had given him many chances to remain on probation and to obtain treatment for his drug problem (see, People v. Gagnon, 245 A.D.2d 593, 595, 665 N.Y.S.2d 106;  People v. Justin ZZ, supra, at 811, 656 N.Y.S.2d 519).

MEMORANDUM BY THE COURT.