People v. Smith

• Decision Date: 17 January 1989
• Citation: 146 A.D.2d 656,538 N.Y.S.2d 460
• Parties: The PEOPLE, etc., Respondent, v. William SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 460

538 N.Y.S.2d 460

146 A.D.2d 656

The PEOPLE, etc., Respondent, v. William SMITH, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

January 17, 1989

Arza R. Feldman, Hauppauge, for appellant. Patrick Henry, Dist. Atty., Riverhead (Michael Blakey, of counsel; Edward Burke on the brief), for respondent.

Appeal by the defendant from an amended judgment of the Supreme Court, Suffolk County (McInerney, J.), rendered December 3, 1987, revoking a sentence of probation previously imposed by the same court upon a finding that he had violated a condition thereof, upon his plea of guilty, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree. ORDERED that the amended judgment is affirmed. The defendant's challenge to the sufficiency of his plea allocution has not been preserved for appellate review since he did not seek to withdraw his plea at any time prior to sentencing (see, People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938). In any event, under the circumstances herein, the court properly adjudicated the defendant in violation of probation based upon his plea of guilty (see, CPL 410.70; People v. Lombardo, 108 A.D.2d 873, 874, 485 N.Y.S.2d 370; People v. Pons, 134 A.D.2d 378, 520 N.Y.S.2d 855). We find no basis for concluding that the sentence, which was the product of a negotiated plea, requires modification in the interest of justice (see, People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). Finally, we note that contrary to defendant's contention the material referred to by the People was not dehors the record.

MOLLEN, P.J., and BROWN, KUNZEMAN and KOOPER, JJ., concur.