People v. Conger

233 A.D.2d 620, 650 N.Y.S.2d 319, 1996 N.Y. App. Div. LEXIS 11737

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1996
• Status: Published

Opinion

Appeal from a judgment of the County Court of Cortland County (Mullen, J.), rendered November 18,1993, which revoked defendant’s probation and imposed a term of imprisonment.

Pursuant to a plea bargain agreement, defendant pleaded guilty to the crimes of assault in the second degree and two counts of petit larceny. He was sentenced to a five-year term of probation on the assault conviction to run concurrently with two three-year terms of probation imposed on the petit larceny convictions. Defendant was thereafter charged with violating the terms of his probation due to, inter alia, his failure to complete a residential drug rehabilitation program. He was accordingly sentenced to a prison term of l1/s to 7 years.

Defendant appeals, contending that County Court erred by failing to order an updated presentence report and that the sentence imposed was excessive. We disagree. Whether to obtain an updated presentence report prior to resentencing lies within the discretion of the sentencing court (see, People v Kuey, 83 NY2d 278, 282). County Court did not abuse its discretion here where the original presentence report was less than six months old and was supplemented by more recent reports from defendant’s probation officer and from the residential drug rehabilitation program which defendant left after only 30 minutes. Given defendant’s failure to abide by the conditions of his probation, we find no reason to disturb the sentence imposed by County Court.

Mikoll, J. P., White, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed.