People v. McClain

281 A.D.2d 959, 722 N.Y.S.2d 442, 2001 N.Y. App. Div. LEXIS 2785

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant contends that he was denied due process because, prior to the hearing to determine whether he had violated the conditions of his probation, he did not receive notice of an additional allegation. Defendant failed to preserve that contention for our review (see, CPL 470.05 [2]) and, in any event, it is lacking in merit. When defendant was arraigned, County Court stated in defendant’s presence that it would direct the Probation Department to include the additional allegation in the information of delinquency. When defendant thereafter appeared for the hearing, the court advised defendant of the contents of the amended information of delinquency and provided him with a copy. Although defendant indicated that he “did not believe” that he was prepared to proceed on the new allegation, defendant did not request an adjournment of the hearing (see, CPL 410.70 [2]). Thus, we conclude that there was no denial of defendant’s due process rights. The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Monroe County Court, Marks, J. — Violation of Probation.) Present — Pine, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.