PEOPLE v. HOUSTON (2018)

DECISION & ORDER

Appeal by the defendant from an amended judgment of the County Court, Orange County (Freehill, J.), rendered March 23, 2016, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated a condition thereof, upon his admission, and imposing a term of imprisonment upon his previous adjudication as a youthful offender for assault in the second degree.

ORDERED that the amended judgment is affirmed.

The record of the plea proceeding is inadequate to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal and, thus, the purported waiver of his right to appeal is not enforceable (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297).

The defendant failed to preserve for appellate review his contention that the County Court lost jurisdiction to adjudicate him in violation of probation due to a delay between a probation warrant and his appearance in court at the proceeding in which the court revoked the prior sentence of probation and imposed a period of incarceration (see People v. Douglas, 94 N.Y.2d 807, 808, 701 N.Y.S.2d 305, 723 N.E.2d 54;  People v. Horvath, 37 A.D.3d 33, 36, 825 N.Y.S.2d 757;  People v. Williams, 19 A.D.3d 868, 869, 797 N.Y.S.2d 611).  In any event, this contention is without merit.  Contrary to the defendant's contention, he was not denied the effective assistance of counsel due to defense counsel's failure to raise this argument before the County Court (see generally People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant also failed to preserve for appellate review his contention that the County Court improperly sentenced him without obtaining an updated presentence report (see People v. Heine, 122 A.D.3d 644, 645, 994 N.Y.S.2d 546;  People v. McGinn, 96 A.D.3d 977, 946 N.Y.S.2d 489;  People v. Gledhill, 91 A.D.3d 886, 936 N.Y.S.2d 916;  People v. Ortega, 1 A.D.3d 533, 767 N.Y.S.2d 265;  cf. People v. Jackson, 106 A.D.2d 93, 98, 483 N.Y.S.2d 725), and we decline to review it in the exercise of our interest of justice jurisdiction.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.