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

1271
KA 14-01061
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWAYNE HANDLEY, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DWAYNE HANDLEY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), rendered April 8, 2014. 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: Defendant appeals from a judgment revoking the
sentence of probation previously imposed upon his conviction of
attempted criminal possession of a weapon in the second degree (Penal
Law §§ 110.00, 265.03 [3]) and sentencing him to a determinate term of
imprisonment of seven years plus three years of postrelease
supervision. We reject defendant’s contention that the sentence is
unduly harsh and severe. Although defendant was sentenced to the
maximum sentence permitted by law and has a minimal criminal history,
he repeatedly fired a gun at another person, and one of the errant
bullets went through the window of a nearby home. Moreover, shortly
after being placed on probation, defendant essentially ignored all of
the terms and conditions of probation and then absconded for the next
year and a half. Under the circumstances, we perceive no basis upon
which to modify the sentence as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [b]; see generally People v Leggett,
101 AD3d 1694, 1695, lv denied 20 NY3d 1101).

     Defendant’s contentions in his pro se supplemental brief that his
plea was involuntarily entered and that he was deprived of effective
assistance of counsel at the time of the plea are not properly before
us. The only notice of appeal in the record is from the judgment
entered upon sentencing for the violation of probation, and there is
                                 -2-                          1271
                                                         KA 14-01061

no notice of appeal from the underlying judgment of conviction (see
People v Postula, 50 AD3d 1581, 1581, lv denied 10 NY3d 938; People v
Parente, 4 AD3d 793, 793-794).




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
