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

1047
KA 13-00311
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH FISHER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered April 24, 2009. The judgment
convicted defendant, upon his plea of guilty, of felony driving while
intoxicated and aggravated unlicensed operation of a motor vehicle in
the first degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of, inter alia, felony driving
while intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c]
[ii]). He was originally sentenced to a term of incarceration, but
Supreme Court thereafter granted that part of defendant’s motion
pursuant to CPL article 440 to set aside the sentence. The court
resentenced him to six months’ incarceration, which by that time had
been served, and a term of probation of five years. In appeal No. 2,
defendant appeals from a judgment revoking that probation and imposing
a sentence of incarceration.

     Defendant failed to preserve for our review his contention in
appeal No. 1 that he was deprived of counsel of his choice at
sentencing, inasmuch as “defendant did not voice any objection to his
attorney’s application to be relieved as defense counsel” (People v
Tineo, 64 NY2d 531, 536; see People v Sims, 105 AD3d 415, 416, lv
denied 21 NY3d 1009), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see Sims, 105 AD3d at 416). His contentions with respect to the
original sentence were rendered moot by the order setting aside that
sentence and resentencing defendant (see generally People v Clayton,
38 AD3d 1131, 1131-1132, lv denied 9 NY3d 841).
                                 -2-                          1047
                                                         KA 13-00311

     We reject defendant’s contention in appeal No. 2 that the
sentence imposed upon the revocation of his probation is unduly harsh
and severe.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
