        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

868
KA 13-00160
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL CONTI, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (MEGAN P. DADD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered October 22, 2012. The judgment revoked a
sentence of probation and imposed a sentence of incarceration.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment revoking a
sentence of probation and imposing a period of incarceration and
restitution. Defendant contends, inter alia, that County Court lacked
jurisdiction to preside over the violation proceeding because his term
of probation had expired before the declaration of delinquency was
filed. We reject that contention.

     Several months before his term of probation was set to expire, a
declaration of delinquency was filed, and defendant admitted to an
initial violation of probation as part of a plea agreement. The court
sentenced defendant to “time served” and stated that it would
“continue [his] Probation under 65.00 Subdivision 4 of the Penal Law
and extend [probation] for a period of one year from this date.”
Penal Law § 65.00 (4) provides that, in any case where a court revokes
probation and sentences a defendant to imprisonment and probation, the
period of probation shall be either “the remaining period of the
original probation sentence or one year whichever is greater.”
Because the court stated that it would “continue,” as opposed to
“revoke,” defendant’s probation, defendant contends that the court
could extend his probation for only 75 days, representing the period
of time between the filing of the declaration of delinquency and the
final determination with respect to that delinquency (compare § 65.00
[4] with § 65.15 [2]). Defendant thus contends that his probationary
period expired before the declaration of delinquency was filed, and
that the court therefore lacked jurisdiction to preside over the
violation proceeding.
                                 -2-                           868
                                                         KA 13-00160

     Defendant concedes that he failed to raise his contention with
respect to jurisdiction before the court, but we nevertheless agree
with him that it may be raised for the first time on appeal (see
People v Correa, 15 NY3d 213, 222; People v Wilson, 14 NY3d 895, 897;
People v Nicometi, 12 NY2d 428, 431). We conclude, however, that his
contention lacks merit. Although the court, following the initial
violation of probation proceeding, stated that it would “continue”
rather than “revoke” his probation, it also stated that it was
imposing a period of imprisonment, i.e., “time served,” and,
furthermore, the court cited Penal Law § 65.00 (4) as the basis for
the period of incarceration and extension of probation. We thus
conclude that, pursuant to section 65.00 (4), defendant’s probation
was lawfully extended for one year and that, because defendant was
still subject to that period of probation when the declaration of
delinquency was filed, the court had jurisdiction to preside over the
violation proceeding and to impose a period of incarceration on
defendant.

     We reject defendant’s further contention that the court erred in
ordering him to pay restitution to the County of Yates (County) to
cover the expenses related to his extradition. Following the filing
of the declaration of delinquency, defendant left New York State and
was ultimately apprehended in Tennessee. Pursuant to the terms and
conditions of his probation, which had been modified in May 2010 to
incorporate the terms and conditions of a Drug Treatment Court
Contract that he had executed in order to participate in the Yates
County Drug Treatment Court Program, defendant was required to
reimburse the County for all expenses related to his extradition.
Moreover, as part of his plea agreement with respect to the violation
of probation herein, defendant agreed to reimburse the County for the
extradition expenses in exchange for a sentence of incarceration that
was less than the maximum sentence authorized by law. Inasmuch as
defendant agreed to reimburse the County as a condition of probation
and “committed to such payment as part of his plea agreement,” we see
no basis upon which to vacate the order of restitution (People v
Carter, 64 AD3d 1089, 1091, lv denied 13 NY3d 835; see People v Burke,
47 AD3d 1161, 1161; People v Perry, 261 AD2d 650, 650-651, lv
denied 93 NY2d 1024; cf. People v Monroe, 82 AD3d 1674, 1675, lv
denied 17 NY3d 808; People v Pelkey, 63 AD3d 1188, 1190-1191, lv
denied 13 NY3d 748). We acknowledge our prior decisions in People v
Watson (197 AD2d 880, 880-881) and People v Dulanski (175 AD2d 672,
672), but we note that those decisions preceded the amendment to CPL
570.56, which permits a county to seek reimbursement for extradition
expenses “from the person who was extradited” (see L 1995, ch 193, §
1).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
