People v. Jiminez

238 A.D.2d 626, 656 N.Y.S.2d 955, 1997 N.Y. App. Div. LEXIS 3160

Opinion

—Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered September 1, 1995, which revoked defendant’s probation and imposed a sentence of imprisonment.

Defendant was sentenced to time served and five years’ probation upon pleading guilty to the crime of attempted burglary in the second degree. While on probation, defendant was indicted on two counts of the crime of criminal sale of a controlled substance in the third degree and, after a hearing, was found guilty of violating the terms of his probation. Defendant’s previous sentence was revoked and he was resentenced to a prison term of 2 to 6 years. On appeal, defendant challenges the sentencing procedure used by County Court, contending that the court failed to consider mitigating factors-, specifically defendant’s substance abuse problem, when imposing the sentence. Defendant failed to preserve this issue for our review (see, CPL 470.05 [2]; see also, People v Callahan, 80 NY2d 273, 281; People v Peters, 191 AD2d 329). Were we to consider the issue, we would find that County Court considered defendant’s substance abuse problem but determined that such evidence did not constitute a mitigating circumstance. In any event, a review of the record reveals that the sentence imposed was not harsh or excessive and we find no reason to disturb it (see, People v Young, 217 AD2d 724, lv denied 86 NY2d 848; People v Pickett, 193 AD2d 883).

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