Opinion
December 31, 1998
Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Violation of Probation.
Judgment unanimously affirmed. Memorandum: Upon defendant's 1996 conviction of driving while intoxicated as a felony and aggravated unlicensed operation of a motor vehicle in the first degree, County Court sentenced defendant to a period of probation of five years and imposed a $3,500 fine. Defendant did not appeal from that judgment of conviction. He now appeals from a judgment revoking the sentence of probation, imposing a term of incarceration of 1 to 3 years and leaving the previously imposed fine undisturbed.
The waiver of the right to appeal encompasses defendant's contention that the part of the sentence imposing a term of incarceration is unduly harsh and severe ( see, People v. Hidalgo, 91 N.Y.2d 733, 734). Further, the challenge to the fine is not properly before us on the appeal from the judgment resentencing defendant. The fine was imposed as part of the original sentence in the judgment of conviction from which no appeal was taken ( see, People v. Rutnik, 198 A.D.2d 617; see also, People v. Ambriati, 239 A.D.2d 948, lv denied 90 N.Y.2d 901).
Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.