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

581
KA 09-00884
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SALVATORE GIANNI, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SALVATORE GIANNI, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered August 20, 2008. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
revoking the sentence of probation previously imposed upon his
conviction of criminal contempt in the first degree (Penal Law §
215.51 [b] [v]) and imposing a sentence of imprisonment based on his
violation of the terms and conditions of his probation. In appeal No.
2, defendant appeals from a judgment revoking the sentence of
probation previously imposed upon his conviction of felony driving
while intoxicated (Vehicle and Traffic Law § 1192 [3]; 1193 [1] [c]
[former (i)]) and imposing a sentence of imprisonment based on his
violation of the terms and conditions of his probation.

     With respect to both appeals, defendant contends in his pro se
supplemental brief that County Court failed to comply with the
procedures for a probation violation hearing set forth in CPL 410.70
and that he was thereby deprived of due process. Defendant failed to
preserve that contention for our review (see generally People v
Randall, 48 AD3d 1080; People v Ebert, 18 AD3d 963, 964; People v
Zaborowski, 16 AD3d 1058, 1058, lv denied 5 NY3d 772) and, in any
event, defendant’s contention is without merit (see generally Randall,
48 AD3d 1080; Ebert, 18 AD3d at 964). To the extent that defendant
contends he was denied effective assistance of counsel because defense
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                                                         KA 09-00884

counsel failed to advise him of his rights relative to the probation
revocation hearing, that contention involves matters outside the
record on appeal and must be raised by way of a motion pursuant to CPL
article 440 (see People v Johnson, 81 AD3d 1428, 1428, lv denied 16
NY3d 896; People v Balenger, 70 AD3d 1318, 1318, lv denied 14 NY3d
885). With respect to the remaining instances of alleged ineffective
assistance of counsel, we conclude based on the record before us that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147; People v Haas, 245 AD2d 825, 826).

     Defendant failed to preserve for our review the further
contention in his pro se supplemental brief that the court “erred in
failing to order an updated presentence report before sentencing him
following the revocation of probation” (People v Carey, 86 AD3d 925,
925, lv denied 17 NY3d 814). In any event, that contention is without
merit inasmuch as the declarations of delinquency, the violation of
probation reports and the testimony and documentary evidence produced
at the revocation hearing “constituted the functional equivalent of an
updated [presentence] report” (id. at 925 [internal quotation marks
omitted]; see People v Fairman, 38 AD3d 1346, 1347, lv denied 9 NY3d
865; People v Bennett, 269 AD2d 401, lv denied 94 NY2d 916). Further,
inasmuch as the same judge presided over both the original proceedings
and the revocation proceedings, “[t]he court was fully familiar with
any changes in defendant’s status, conduct or condition since the
original sentencing” (Carey, 86 AD3d at 925 [internal quotation marks
omitted]; see also People v Pomales, 37 AD3d 1098, 1098-1099, lv
denied 8 NY3d 949).

     Contrary to the contention of defendant in his main and pro se
supplemental briefs, the sentence is not unduly harsh or severe,
particularly in light of defendant’s history of unsuccessful probation
attempts, his lengthy criminal record and his failure to control his
alcohol consumption, despite many treatment referrals and three
alcohol-related convictions (see e.g. People v Hunter, 62 AD3d 1207,
1208; People v Smith, 301 AD2d 744, 745). Further, “[g]iven the fact
that defendant was initially allowed to plead to . . . reduced
charge[s] and failed to abide by the favorable conditions of the plea,
and taking into consideration his criminal behavior in violating his
probation, we [discern] no abuse of discretion or extraordinary
circumstances warranting a reduction of the sentence in the interest
of justice” (People v Feliciano, 54 AD3d 1131, 1132-1133; see People v
Gurrola, 43 AD3d 1230, 1231; People v Grignon, 186 AD2d 296, lv denied
81 NY2d 789).




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
