People v. Reddy

May 31, 1996
Reporters:
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Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment resentencing him following a hearing at which he was found to be in violation of the ‍‌‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌‌​​​‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌​‍terms of his probation. He contends that his sentence of probation is prohibited by Penal Law § 65.00 (1) because he was sentenced to jail in excess of the time limits of Penal Law § 60.01 (2) (d), and thus, that sentence cannot serve as a basis for a violation of probation (see, People ‍‌‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌‌​​​‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌​‍v O’Brien [appeal No. 1], 190 AD2d 1097). This Court cannot review that challenge to the original judgment of conviction, however, because the record on appeal contains a notice of appeal only from the judgment resentencing defendant following the finding of a violation of probation; nothing in the record indicates ‍‌‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌‌​​​‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌​‍that defendant perfected an appeal from the original judgment of conviction, wherein the original sentence could have been challenged. Under these circumstances, this Court may review only the propriety of the judgment resentencing defendant and cannot review any challenge to the original judgment (see, People v Gavadin, 219 AD2d 863, lv ‍‌‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌‌​​​‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌​‍denied 87 NY2d 901; CPL 450.30 [3]; see also, People v Cerio, 224 AD2d 968; People v Dabbs, 178 AD2d 848, lv denied 79 NY2d 946; People v Lugo, 176 AD2d 177, 178).

County Court properly found that defendant violated the terms of his probation by failing to participate in a meaningful manner in the sex offender group treatment program. ‍‌‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌‌​​​‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌​‍(Appeal from Judgment of Allegany County Court, Sprague, J. — Violation of Probation.) Present — Pine, J. P., Fallon, Callahan, Do-err and Davis, JJ.