People v. Fisnar

212 A.D.2d 628, 623 N.Y.S.2d 144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1995
• Status: Published

Opinion

—Appeal by the defendant from an amended sentence of the Supreme Court, Suffolk County (Rohl, J.), imposed February 1, 1994, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal sale of a controlled substance in the second degree.

Ordered that the amended sentence is affirmed.

The general waiver of appeal rights which the defendant executed at the plea proceeding on December 6, 1993, did not effectively waive his right to claim on appeal that the amended sentence was unlawful because it was not based on an updated pre-sentence report (see, CPL 390.20 [4]; People v Dorino, 200 AD2d 632).

Nonetheless, contrary to the defendant’s contentions, a review of the record reveals that the court did in fact have an updated pre-sentence report before it at the time that it imposed the amended sentence.

The remaining claims raised by the defendant were either effectively waived by the defendant’s general waiver of his appeal rights (see, People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1), or are without merit. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.