People v. Miller

• Decision Date: 29 December 2011
• Citation: 935 N.Y.S.2d 230,90 A.D.3d 1416,2011 N.Y. Slip Op. 09549
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher L. MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09549

90 A.D.3d 1416

935 N.Y.S.2d 230

The PEOPLE of the State of New York, Respondent,

v.Christopher L. MILLER, Appellant.

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

Dec. 29, 2011.

John A. Cirando, Syracuse, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan Becker of counsel), for respondent.

Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 27, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

In April 2007, defendant was sentenced to 10 years of probation following his conviction of rape in the third degree. Between January 2008 and May 2009, defendant was charged with and admitted to violating the terms of his probation three times. On each occasion, defendant's term of probation was extended. In May 2010, a fourth violation of probation petition was filed. Defendant admitted to violating the conditions of his probation by failing to report to his probation officer as required, failing to submit to drug testing and failing to cooperate with recommended substance abuse treatment. County Court revoked defendant's probation and sentenced him to a prison term of 1 to 4 years. Defendant now appeals.

We affirm. Defendant's claim that his guilty plea to the violation petition was not knowingly, intelligently and voluntarily entered is unpreserved for our review in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Cerone, 75 A.D.3d 835, 835–836, 906 N.Y.S.2d 154 [2010], lv. denied 15 N.Y.3d 850, 909 N.Y.S.2d 27, 935 N.E.2d 819 [2010]; People v. Diaz, 26 A.D.3d 644, 645, 808 N.Y.S.2d 565 [2006], lv. denied 7 N.Y.3d 755, 819 N.Y.S.2d 880, 853 N.E.2d 251 [2006] ). In any event, County Court advised defendant of the ramifications of pleading guilty and defendant acknowledged his understanding and that he was entering his plea voluntarily. Defendant affirmatively stated that the medications he was taking did not affect his ability to comprehend the proceedings and there is nothing in the record to indicate that his plea was not knowing, intelligent and voluntary ( see People v. Gomez, 72 A.D.3d 1337, 1338, 899 N.Y.S.2d 435 [2010]; People v. Williamson, 301 A.D.2d 860, 861–862, 755 N.Y.S.2d 443 [2003], lv. denied 100 N.Y.2d 567, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ).

Defendant's contention that County Court erred in sentencing him without an updated presentence report is also unpreserved for our review, due to his failure to request an updated report, raise an objection at sentencing or move to vacate the judgment ( see People v. Clark, 80 A.D.3d 1079, 1079, 914 N.Y.S.2d 918 [2011]; People v. Ruff, 50 A.D.3d 1167, 1168, 854 N.Y.S.2d 787 [2008] ...