Opinion
May 31, 1996
Appeal from the Allegany County Court, Sprague, J.
Present — Pine, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. 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). 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, lv denied 87 N.Y.2d 901; CPL 450.30; see also, People v. Cerio, 224 A.D.2d 968; People v. Dabbs, 178 A.D.2d 848, lv denied 79 N.Y.2d 946; People v. Lugo, 176 A.D.2d 177, 178).
County Court properly found that defendant violated the terms of his probation by failing to participate in a meaningful manner in the sex offender group treatment program.