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

1333
KA 12-01723
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DERICK W. BARKER, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered April 2, 2012. The judgment convicted
defendant, upon his plea of guilty, of strangulation in the second
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of strangulation in the second degree (Penal
Law § 121.12). Defendant’s contention that County Court erred in
refusing to make the presentence report (PSR) available to him before
sentencing is without merit inasmuch as defendant did not request the
PSR before sentencing (see generally CPL 390.50 [2] [a]). Defendant’s
contention that the court erred in refusing to make the PSR available
to him in connection with this appeal is likewise without merit.
Indeed, the submissions before us reflect that defendant received and
reviewed the PSR in a timely fashion in connection with this appeal.
Finally, the sentence is not unduly harsh or severe.




Entered:   January 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
