People v. Marcano

199 A.D.2d 86, 605 N.Y.S.2d 51, 1993 N.Y. App. Div. LEXIS 11923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1993
• Status: Published

Opinion

Judgments, Supreme Court, New York County (Joan Carey, J.), rendered September 24, 1991, convicting defendant, upon his pleas of guilty, of burglary in the second degree and arson in the third degree, and sentencing him to two concurrent terms of 2 to 6 years, unanimously affirmed.

Defendant’s claim that the sentencing court did not order a presentence investigation and written report thereon before sentencing him is without merit, the presentence report in the court’s file indicating on its face that it was completed the day before sentencing and date-stamped and received by the sentencing court on the date of sentencing. That there are no references to the report in the sentencing minutes is irrelevant. Defendant may not presume by the record’s silence that the court did not review the report or that defense counsel was not afforded an opportunity to argue from it. Judicial proceedings enjoy a presumption of regularity that "may be overcome only by affirmative proof sufficient to rebut its effectiveness” (People v Lopez, 97 AD2d 5, 7). Thus, absent affirmative proof to the contrary, it is to be presumed that the court regularly considered the report and made it available to counsel. Concur—Murphy, P. J., Sullivan, Ross and Asch, JJ.