Opinion
2012-06-20
The PEOPLE, etc., respondent, v. Michael McGINN, appellant.
Arza Feldman, Uniondale, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Arza Feldman, Uniondale, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Appeal by the defendant from an amended judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered January 24, 2011, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of operating a vehicle while under the influence of alcohol, as a felony, and aggravated unlicensed operation of a motor vehicle in the first degree, upon his plea of guilty.
ORDERED that the amended judgment is affirmed.
The defendant's contention that the Supreme Court improperly sentenced him without obtaining an updated presentence report is unpreserved for appellate review ( see CPL 470.05[2]; People v. Gledhill, 91 A.D.3d 886, 936 N.Y.S.2d 916;People v. Mannina, 89 A.D.3d 1038, 933 N.Y.S.2d 570;People v. Thompson, 65 A.D.3d 1390, 885 N.Y.S.2d 625) and, in any event, is without merit ( see People v. Kuey, 83 N.Y.2d 278, 282–283, 609 N.Y.S.2d 568, 631 N.E.2d 574;People v. Cannon, 208 A.D.2d 942, 943, 617 N.Y.S.2d 865;People v. Jackson, 106 A.D.2d 93, 98, 483 N.Y.S.2d 725).
The defendant failed to preserve for appellate review his contention that his sentence should be vacated because the Supreme Court did not afford either the prosecutor or defense counsel the opportunity to make a statement with respect to the sentence and did not ask the defendant if he wished to make a statement in his own behalf, in violation of CPL 380.50(1) ( see CPL 470.05[2]; People v. McCant, 79 A.D.3d 908, 912 N.Y.S.2d 422;People v. Chin, 69 A.D.3d 752, 753, 897 N.Y.S.2d 106;People v. Chi Fong Chen, 56 A.D.3d 488, 489, 865 N.Y.S.2d 914), and the contention is, in any event, without merit ( see People v. McClain, 35 N.Y.2d 483, 491, 364 N.Y.S.2d 143, 323 N.E.2d 685,cert. denied sub nom. Taylor v. New York, 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76;People v. Regan, 88 A.D.2d 664, 450 N.Y.S.2d 516).