People v. Reddy

• Decision Date: 31 May 1996
• Citation: 643 N.Y.S.2d 857,227 A.D.2d 961
• Parties: PEOPLE of the State of New York, Respondent, v. Patrick J. REDDY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 857

643 N.Y.S.2d 857

227 A.D.2d 961

PEOPLE of the State of New York, Respondent, v. Patrick J. REDDY, Appellant.

Supreme Court, Appellate Division Fourth Department.

May 31, 1996.

Kevin Bradley, Canisteo, for Appellant.

James Euken by Kathleen McDonald, Belmont, for Respondent.

Before PINE, J.P., and FALLON, CALLAHAN, DOERR and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment resentencing him following a hearing at which he was found to be in violation of the terms of his probation. He contends that his sentence of probation is prohibited by Penal Law § 65.00(1) because he was sentenced to jail in excess of the time limits of Penal Law § 60.01(2)(d), and thus, that sentence cannot serve as a basis for a violation of probation (see, People v. O'Brien [appeal No. 1], 190 A.D.2d 1097, 594 N.Y.S.2d 672). This Court cannot review that challenge to the original judgment of conviction, however, because the record on appeal contains a notice of appeal only from the judgment resentencing defendant following the finding of a violation of probation; nothing in the record indicates that defendant perfected an appeal from the original judgment of conviction, wherein the original sentence could have been challenged. Under these circumstances, this Court may review only the propriety of the judgment resentencing defendant and cannot review any challenge to the original judgment (see, People v. Gavadin, 219 A.D.2d 863, 632 N.Y.S.2d 351, lv. denied 87 N.Y.2d 901, 641 N.Y.S.2d 231, 663 N.E.2d 1261; CPL 450.30[3]; see also, People v. Cerio, 224 A.D.2d 968, 638 N.Y.S.2d 572; People v. Dabbs, 178 A.D.2d 848, 577 N.Y.S.2d 721, lv. denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808; People v. Lugo, 176 A.D.2d 177, 178, 574 N.Y.S.2d 306).

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