People v. Davila

• Decision Date: 03 April 1997
• Citation: 655 N.Y.S.2d 698,238 A.D.2d 625
• Parties: The PEOPLE of the State of New York, Respondent, v. Ramon DAVILA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 698

655 N.Y.S.2d 698

238 A.D.2d 625

The PEOPLE of the State of New York, Respondent, v. Ramon DAVILA, Appellant.

Supreme Court, Appellate Division Third Department.

April 3, 1997.

Elbert H. Watrous, Public Defender, Schenectady, for appellant.

Robert M. Carney, District Attorney (Alfred D. Chapleau, of counsel), Schenectady, for respondent.

Before CARDONA, P.J., and MIKOLL, WHITE, CASEY and SPAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court (Sheridan, J.), rendered March 8, 1995 in Schenectady County, convicting defendant upon his plea of guilty of three counts of the crime of robbery in the second degree.

Defendant and two codefendants were indicted on three counts of robbery in the second degree after they forcibly took money from a restaurant and a pedestrian. Prior to trial, defendant pleaded guilty to all of the charges contained in the indictment without any promises being made with respect to the sentence. The presentence report states that defendant was not interviewed during the course of the presentence investigation because he was incarcerated at a Department of Correctional Services facility in Buffalo. Thereafter, defendant was sentenced to two concurrent terms and one consecutive term of 3 1/2 to 10 1/2 years in prison. On appeal, defendant contends that Supreme Court improperly considered a presentence report which did not contain a statement from him and that the sentence imposed is harsh and excessive.

Initially, inasmuch as defendant failed to raise his objection regarding the presentence report before Supreme Court, he has waived his right to raise it on appeal (see, People v. Greene, 209 A.D.2d 541, 542, 619 N.Y.S.2d 74, lv denied 85 N.Y.2d 909, 627 N.Y.S.2d 332, 650 N.E.2d 1334; People v. Moquette, 200 A.D.2d 854, 606 N.Y.S.2d 820, lv denied83 N.Y.2d 874, 613 N.Y.S.2d 135, 635 N.E.2d 304). Nevertheless, were we to consider the merits of this claim, we would find it to be without merit since there is no statutory requirement that a statement by the defendant be included in the presentence report (see, CPL 390.30; see, e.g., People v. Deyo, 222 A.D.2d 757, 758, 635 N.Y.S.2d 100; People v. Sanchez, 175 A.D.2d 817, 573 N.Y.S.2d 295; People v. Bercume, 53 A.D.2d 924, 385 N.Y.S.2d 187). Notably, when given an opportunity to address the court on the day of sentencing, defendant declined to comment. Likewise, we do not find that the sentence imposed is either harsh or excessive given the violent...