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

651
KA 10-02302
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TRAVIS SERVEY, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LAURIE M. BECKERINK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered August 5, 2010. The judgment convicted defendant,
upon his plea of guilty, of burglary in the third 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 burglary in the third degree (Penal Law §
140.20). Defendant contends that County Court erred in sentencing him
without first receiving and considering a presentence report pursuant
to CPL 390.20 (1). Although defendant failed to preserve that
contention for our review (see CPL 470.05 [2]), he further contends
that this Court nevertheless should review it pursuant to the “narrow
exception to preservation where a mode of proceedings error affects a
court’s jurisdiction and power over a defendant” (People v Williams,
14 NY3d 198, 220, cert denied ___ US ___, 131 S Ct 125). Here,
however, the record establishes that the prosecutor indicated that the
pre-plea report would serve as the presentence report, whereupon
defendant indicated that he was ready to proceed with the plea and
sentencing that same day. We thus conclude that defendant is deemed
to have waived his present contention concerning the presentence
report. In any event, even assuming, arguendo, that defendant did not
waive his present contention, we conclude that this is not such an
error “implicating the integrity of the process” such that
preservation would not be required in the absence of the waiver
(People v Hansen, 95 NY2d 227, 231).

     Contrary to defendant’s further contention, the sentence is not
                          -2-                  651
                                         KA 10-02302

unduly harsh or severe.




Entered:   June 8, 2012         Frances E. Cafarell
                                Clerk of the Court
