Opinion
661 KA 22-00456
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Jacorey RICHARDSON, Defendant-Appellant.
LEAH R. NOWOTARSKI, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
LEAH R. NOWOTARSKI, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ) and assault in the second degree (§ 120.05 [7]). County Court initially imposed a term of interim probation in accordance with the plea agreement (see CPL 390.30 [6] ), but then, following a hearing, revoked defendant's interim probation upon determining that he violated its conditions, and sentenced him to concurrent terms of incarceration, the longest of which is a determinate term of 11 years.
Defendant failed to preserve his contention that imposition of the conditions of his interim probation requiring him to "not be charged with a crime and ... refrain from violation of any law" deprived him of the presumption of innocence "inasmuch as he did not object to the [conditions] or move to withdraw his guilty plea[ ] or to vacate the judgment[ ] of conviction" ( People v. Bishop , 198 A.D.3d 1381, 1382, 155 N.Y.S.3d 269 [4th Dept. 2021], lv denied 37 N.Y.3d 1095, 156 N.Y.S.3d 781, 801, 178 N.E.3d 428, 448 [2021]). In any event, those were lawful presentence conditions (see People v. Anonymous , 34 N.Y.3d 631, 646, 123 N.Y.S.3d 41, 145 N.E.3d 924 [2020] ; People v. Reynolds , 27 N.Y.3d 1099, 1101, 36 N.Y.S.3d 63, 55 N.E.3d 1036 [2016] ; People v. Outley , 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ).
We reject defendant's contention that the court erred in determining that he violated the terms and conditions of his interim probation, thereby warranting imposition of a sentence of incarceration. Contrary to defendant's contention, 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’ " ( 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], quoting Outley , 80 N.Y.2d at 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; see People v. Koons , 187 A.D.3d 1638, 1639, 133 N.Y.S.3d 364 [4th Dept. 2020] ), and the court's inquiry "was of sufficient depth to enable the court to determine that defendant failed to comply with the terms and conditions of his interim probation" ( People v. Butler , 151 A.D.3d 1959, 1960, 55 N.Y.S.3d 569 [4th Dept. 2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] [internal quotation marks omitted]; see People v. Wissert , 85 A.D.3d 1633, 1633, 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] ). Inasmuch as the court explained the conditions of the interim probation to defendant during the plea colloquy and provided him with a written copy, which he acknowledged and signed, the court acted within its discretion in imposing a sentence of incarceration in accordance with the plea agreement upon finding that defendant failed to comply with the conditions (see People v. Mays , 181 A.D.3d 874, 875, 119 N.Y.S.3d 883 [2d Dept. 2020], lv denied 36 N.Y.3d 1058, 141 N.Y.S.3d 769, 165 N.E.3d 695 [2021] ; see also Koons , 187 A.D.3d at 1639, 133 N.Y.S.3d 364 ; Wissert , 85 A.D.3d at 1633, 924 N.Y.S.2d 909 ).
To the extent defendant contends that the sentence imposed is illegal, the contention lacks merit (see generally People v. Streeter , 71 A.D.3d 1463, 1464, 897 N.Y.S.2d 358 [4th Dept. 2010], lv denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.