                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     105075
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES WAITE JR.,
                    Appellant.
________________________________


Calendar Date:   June 4, 2014

Before:   Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                             __________


     Erin C. Morigerato, Albany, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered October 3, 2011, convicting
defendant upon his plea of guilty of the crime of criminal
possession of stolen property in the fourth degree.

      In October 2009, defendant was indicted and charged with
one count of criminal possession of stolen property in the fourth
degree. Defendant pleaded guilty to the charged crime in
February 2010 – with the understanding that he would be placed on
interim probation supervision for a period of one year and, if
successful, would receive a sentence of probation. The matter
                              -2-                105075

then was adjourned for sentencing.1 Based upon information
contained in the presentence investigation report, County Court
ordered that defendant be drug tested. When defendant was caught
attempting to substitute a urine sample and thereafter tested
positive for cocaine and opiates, County Court revoked the
underlying plea agreement and, in April 2010, sentenced defendant
to 1¼ to 3¾ years in prison.

      In July 2010, County Court granted defendant's pro se CPL
article 440 motion to vacate the enhanced prison sentence and
placed defendant on interim probation supervision for one year.
In conjunction therewith, defendant was provided with a copy of
the conditions of his supervision, which he signed and
acknowledged. Defendant also was advised that if he complied
with such terms and conditions, he would be sentenced to five
years of probation; if he failed to comply, he would be sentenced
to the period of imprisonment previously imposed. Thereafter, in
July 2011, County Court was advised that defendant had violated
the conditions of his interim probation supervision by, among
other things, failing to report to his probation officer and
receiving an "incomplete" discharge with respect to his
outpatient addiction treatment, and a bench warrant was issued.
When defendant was returned to County Court on the bench warrant
in October 2011, he readily admitted that he initially had "a
little problem with the outpatient [treatment] thing" and, prior
to the expiration of the interim probation supervision, "just
stopped going to probation." As a result, County Court sentenced
defendant to a prison term of 1¼ to 3¾ years. This appeal by
defendant ensued.

      We affirm. Defendant initially contends that his plea was
involuntary because County Court failed to apprise him of the
terms and conditions of his interim probation supervision.
Defendant's initial – and ultimately successful – CPL article 440




    1
        Although the plea agreement also contained a waiver of
defendant's right to appeal, the People concede that such waiver
was invalid.
                              -3-                105075

motion made no mention of this alleged defect,2 however, and the
record does not reflect that, subsequent to the July 2010 court
appearance at which such terms and conditions were imposed,
defendant moved to withdraw his plea or vacate the judgment of
conviction upon this ground. Accordingly, this issue is not
preserved for our review (see People v Musser, 106 AD3d 1334,
1335 [2013], lv denied 22 NY3d 997 [2013]). In any event, a
review of County Court's July 2010 colloquy with defendant
reveals that defendant was advised as to the length of his
interim probation supervision, executed an acknowledgment of the
terms and conditions thereof and was informed that his failure to
abide by such conditions would result in the imposition of a
prison sentence (see People v Wissert, 85 AD3d 1633, 1633 [2011],
lv denied 17 NY3d 956 [2011]).

      As to the propriety of the enhanced sentence imposed, to
the extent that defendant contends that County Court failed to
comply with the provisions of CPL 410.70, we note that those
provisions "do not apply where, as here, there has been no
sentence of probation. Indeed, interim probation supervision is
imposed prior to sentencing . . . [and, therefore,] the
presentence procedures set forth in CPL 400.10 apply" (People v
Rollins, 50 AD3d 1535, 1536 [2008], lv denied 10 NY3d 939 [2008]
[citations omitted]). In this regard, although defendant now
contends that County Court failed to conduct a sufficient inquiry
into the circumstances surrounding his alleged violation of the
conditions of his interim probation supervision, thereby
depriving him of a meaningful opportunity to respond thereto, the
record does not reflect that defendant requested a hearing on
this issue or moved to withdraw his plea upon this ground.
Accordingly, this argument is unpreserved for our review (see
People v Wachtel, 117 AD3d 1203, 1203 [2014]; People v Paneto,
112 AD3d 1230, 1231 [2013]; People v Stubbs, 75 AD3d 664, 664
[2010]; People v Saucier, 69 AD3d 1125, 1125-1126 [2010]). In
any event, we are satisfied that, consistent with the


    2
        Defendant's CPL article 440 motion was premised upon
County Court's failure to inform him that an unsuccessful drug
test would void the underlying plea agreement and result in the
imposition of a prison sentence.
                              -4-                  105075

requirements of CPL 400.10 and People v Outley (80 NY2d 702, 713
[1993]), County Court was possessed of sufficient reliable and
accurate information – most notably, defendant's candid admission
that he "just stopped going to probation" – to warrant imposition
of the enhanced sentence and that, prior thereto, defendant was
afforded an opportunity to dispute and/or respond to the alleged
violation of the conditions of his interim probation supervision
(see People v Wachtel, supra; People v Purcelle, 107 AD3d 1050,
1051 [2013]; People v O'Neill, 76 AD3d 1143, 1144 [2010], lv
denied 15 NY3d 954 [2010]; People v Saucier, 69 AD3d at 1126).
Accordingly, County Court did not abuse its discretion in
imposing the enhanced sentence without first conducting a
hearing.

      Finally, to the extent that defendant now asserts that he
was not timely sentenced within one year of the entry of his
guilty plea (see CPL 390.30 [6]), defendant failed to raise any
objection in this regard before County Court and, therefore, this
issue is not properly before us (see People v Dixon, 295 AD2d
699, 700 [2002], lv denied 98 NY2d 709 [2002]). Defendant's
remaining contentions, including his assertion that the sentence
imposed is harsh and excessive, have been examined and found to
be lacking in merit.

     Peters, P.J., Stein, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
