Opinion
496 KA 12-00996
10-09-2020
The PEOPLE of the State of New York, Respondent, v. Cheyenne J. KOONS, Defendant-Appellant. (Appeal No. 1.)
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND CARNI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the second degree ( Penal Law § 130.45 [1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted rape in the second degree (§§ 110.00, 130.30 [1] ). We previously held the cases, reserved decision, and remitted the matters to County Court to make and state for the record a determination whether to adjudicate defendant a youthful offender in both matters ( People v. Koons , 113 A.D.3d 1063, 1064, 977 N.Y.S.2d 643 [4th Dept. 2014] ; People v. Koons , 113 A.D.3d 1065, 1065, 977 N.Y.S.2d 646 [4th Dept. 2014] ).
Upon remittal, the court declined to adjudicate defendant a youthful offender. Contrary to defendant's contention in both appeals, we conclude that the court did not abuse its discretion in denying him youthful offender status (see People v. Gibson , 134 A.D.3d 1517, 1518, 21 N.Y.S.3d 905 [4th Dept. 2015], lv. denied 27 N.Y.3d 1069, 38 N.Y.S.3d 839, 60 N.E.3d 1205 [2016] ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (cf. People v. Shrubsall , 167 A.D.2d 929, 930-931, 562 N.Y.S.2d 290 [4th Dept. 1990] ).
We further conclude in both appeals that defendant was afforded due process with respect to the imposition and revocation of interim probation and that the court properly determined that defendant violated the conditions of his interim probation. Under the terms of defendant's plea agreement, he was placed on a one-year period of interim probation, which, if successfully completed, would be followed by concurrent sentences of 10 years' probation. The court explained the conditions of the interim probation to defendant during the plea colloquy and provided defendant with a written copy of those conditions, which defendant acknowledged and signed. During the period of interim probation, the probation department filed a petition charging defendant with violations of the conditions. Following a hearing, the court determined that defendant had violated the conditions of his interim probation and sentenced him to concurrent determinate terms of incarceration to be followed by a period of postrelease supervision.
Contrary to defendant's contention, "[t]he procedures set forth in CPL 410.70 do not apply where, as here, there has been no sentence of probation" ( People v. Rollins , 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [4th Dept. 2008], lv. denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). Instead, because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply (see Rollins , 50 A.D.3d at 1536, 856 N.Y.S.2d 417 ). Here, the "hearing conducted by the court was sufficient pursuant to CPL 400.10 (3) to enable the court to ‘assure itself that the information upon which it bas[ed] the sentence [was] reliable and accurate’ " ( id. , quoting People v. Outley , 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ; see People v. Wissert , 85 A.D.3d 1633, 1634, 924 N.Y.S.2d 909 [4th Dept. 2011], lv. denied 17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031 [2011] ; People v. Saucier , 69 A.D.3d 1125, 1126, 892 N.Y.S.2d 684 [3d Dept. 2010] ). Further, while defendant now claims that the court improperly relied on hearsay in making its determination, he failed to preserve that contention for our review inasmuch as he did not make that claim when the court gave him an opportunity to do so (see People v. Dissottle , 68 A.D.3d 1542, 1544, 893 N.Y.S.2d 649 [3d Dept. 2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ).