Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Donald SWICK, Defendant–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment revoking his sentence of probation imposed upon his conviction, following his plea of guilty, of attempted use of a child in a sexual performance (Penal Law §§ 110.00, 263.05 ), and imposing a sentence of imprisonment. "Inasmuch as defendant has completed serving the sentence imposed, his contention that the sentence is unduly harsh and severe has been rendered moot" (People v. Anderson, 66 A.D.3d 1431, 1431, 885 N.Y.S.2d 553, lv. denied 13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [internal quotation marks omitted]; see People v. Benson, 6 A.D.3d 1173, 1173, 775 N.Y.S.2d 694, lv. denied 3 N.Y.3d 636, 782 N.Y.S.2d 408, 816 N.E.2d 198 ).
Defendant further contends that County Court violated his due process rights by revoking his probationary sentence based on a de minimis violation of the terms and conditions of probation. At no time during the probation revocation proceedings did defendant raise any challenge to the allegedly "de minimis" nature of the violation or raise any due process challenge to the proceeding. We thus conclude that defendant's contention is not preserved for our review (see People v. Ebert, 18 A.D.3d 963, 964, 794 N.Y.S.2d 733 ; People v. Villar, 10 A.D.3d 564, 564, 782 N.Y.S.2d 84, lv. denied 3 N.Y.3d 761, 788 N.Y.S.2d 678, 821 N.E.2d 983 ; see generally CPL 470.05[2] ). In any event, we conclude that defendant's admitted "violation of probation was [neither] de minimis nor a mere technicality" (People v. Cummings, 134 A.D.3d 1566, 1566, 21 N.Y.S.3d 915, lv. denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 ; see People v. Burton, 234 A.D.2d 972, 973, 652 N.Y.S.2d 564, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310 ).
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.