Opinion
No. 1042 KA 18-02103
03-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BRIAN J. JONES, DEFENDANT-APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (FABIENNE SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (FABIENNE SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND OGDEN, JJ.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), rendered April 10, 2018. The judgment revoked defendant's sentence of probation and imposed a sentence of incarceration.
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and resisting arrest (§ 205.30) and sentencing him to concurrent terms of incarceration to be followed by a period of postrelease supervision. Defendant contends that County Court erred in failing to order an updated presentence investigation report before sentencing defendant and that the sentence is unduly harsh and severe. The former contention is raised for the first time on appeal and is thus not preserved for our review (see People v Jones, 148 A.D.3d 1807, 1808 [4th Dept 2017], lv denied 29 N.Y.3d 1082 [2017]; People v Carey, 86 A.D.3d 925, 925 [4th Dept 2011], lv denied 17 N.Y.3d 814 [2011]). In any event, both contentions have been rendered moot "inasmuch as defendant has already served his sentence" (People v King, 90 A.D.3d 1533, 1534 [4th Dept 2011], lv denied 18 N.Y.3d 959 [2012]; see People v Swick, 147 A.D.3d 1346, 1346 [4th Dept 2017], lv denied 29 N.Y.3d 1001 [2017]).
Defendant further contends that he was denied effective assistance of counsel at the violation of probation hearing when defense counsel failed to seek suppression of evidence seized during the execution of a search warrant. The record on appeal, however, contains neither the search warrant nor the search warrant application and, as a result, the claim of ineffective assistance of counsel cannot be resolved without reference to matters outside of the record. Therefore, "a CPL 440.10 proceeding is the appropriate forum for reviewing the... claim" (People v Barzee, 204 A.D.3d 1422, 1423 [4th Dept 2022], lv denied 38 N.Y.3d 1132 [2022] [internal quotation marks omitted]; see People v Green, 196 A.D.3d 1148, 1150 [4th Dept 2021], lv denied 37 N.Y.3d 1096 [2021], reconsideration denied 37 N.Y.3d 1161 [2022]; see also People v Gianni, 94 A.D.3d 1477, 1477 [4th Dept 2012], lv denied 19 N.Y.3d 973 [2012]).