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

814
KA 12-00683
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANDREW HAYHURST, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered March 16, 2012. 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 modified as a matter of discretion in the interest of
justice by reducing the sentence to a determinate term of imprisonment
of 3½ years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment revoking the
sentence of probation imposed upon his conviction of attempted
burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]) and
sentencing him to a determinate term of incarceration of seven years.
Defendant failed to preserve for our review his contention that the
sentence should be vacated because he was sentenced without a complete
and accurate updated presentence investigation report (see People v
Gianni, 94 AD3d 1477, 1478, lv denied 19 NY3d 973; People v Carey, 86
AD3d 925, 925, lv denied 17 NY3d 814; People v Ruff, 50 AD3d 1167,
1168). In any event, defendant’s contention is without merit. We
agree with defendant, however, that the sentence is unduly harsh and
severe under the circumstances of this case, and we therefore modify
the sentence as a matter of discretion in the interest of justice to a
determinate term of imprisonment of 3½ years (see generally CPL 470.15
[6] [b]).




Entered:    July 19, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
