People v. Gibbons

• Decision Date: 21 December 2012
• Citation: 2012 N.Y. Slip Op. 08892,101 A.D.3d 1615,956 N.Y.S.2d 720
• Parties: The PEOPLE of the State of New York, Respondent, v. Cynthia GIBBONS, also known as Cynthia Bulinski, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1615

956 N.Y.S.2d 720

2012 N.Y. Slip Op. 08892

The PEOPLE of the State of New York, Respondent,

v.Cynthia GIBBONS, also known as Cynthia Bulinski, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 21, 2012.

Thomas J. Eoannou, Buffalo, for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting her, upon her plea of guilty, of one count of scheme to defraud in the first degree (Penal Law §§ 190.65[1][b] ) and three counts of attempted grand larceny in the second degree (§§ 110.00, 155.40[1] ). Defendant contends that she was denied due process at sentencing because County Court relied on improper information in the presentence investigation report (PSI), i.e., statements from an alleged victim regarding facts outside of the indictment. To the extent that defendant's contention survives her valid waiver of the right to appeal ( see People v. Dimmick, 53 A.D.3d 1113, 1113, 862 N.Y.S.2d 687,lv. denied11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090;People v. Agha, 43 A.D.3d 1383, 1383–1384, 843 N.Y.S.2d 887;see generally People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022), we reject that contention. The sentencing transcript establishes that the court did not rely upon the allegedly improper material included in the PSI in sentencing defendant ( see Dimmick, 53 A.D.3d at 1113, 862 N.Y.S.2d 687;People v. Henderson, 305 A.D.2d 940, 942, 759 N.Y.S.2d 817,lv. denied100 N.Y.2d 582, 764 N.Y.S.2d 393, 796 N.E.2d 485;People v. Anderson, 184 A.D.2d 922, 923, 584 N.Y.S.2d 946,lv. denied80 N.Y.2d 901, 588 N.Y.S.2d 826, 602 N.E.2d 234). Indeed, the court granted defendant's request to redact any references to the challenged material from the PSI and stated that it would “not consider” that information ( see People v. Paragallo, 82 A.D.3d 1508, 1509–1510, 923 N.Y.S.2d 229;People v. Hinkhaus, 194 A.D.2d 1043, 1043–1044, 599 N.Y.S.2d 879). Defendant's further contention that the PSI was “tainted” in its entirety by the inclusion of the allegedly improper material and thus that the court should have ordered the preparation of a new report is unpreserved for our review inasmuch as she did not seek such relief from the court ( see generallyCPL 470.05[2]; People v. Williams, 94 A.D.3d 1527, 1527, 942 N.Y.S.2d 923;People v. Karlas, 208 A.D.2d 767, 767, 617 N.Y.S.2d 778).

Finally, defendant's contention that the court improperly considered a letter from another alleged victim in determining defendant's sentence is without merit. “[D]efendant has made no showing, nor does the record reveal, that the sentencing court relied upon the alleged prejudicial information in arriving at defendant's sentence” ( People v. Redman, 148 A.D.2d 966, 967, 539 N.Y.S.2d 203,lv. denied74 N.Y.2d 745, 545 N.Y.S.2d 120, 543 N.E.2d 763;see also People v. Young, 186 A.D.2d 1072, 1072, 590 N.Y.S.2d 807;People v. Whalen,...