People v. Panek

256 A.D.2d 1238, 683 N.Y.S.2d 453, 1998 N.Y. App. Div. LEXIS 14427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1998
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Upon defendant’s 1996 conviction of driving while intoxicated as a felony and aggravated unlicensed operation of a motor vehicle in the first degree, County Court sentenced defendant to a period of probation of five years and imposed a $3,500 fine. Defendant did not appeal from that judgment of conviction. He now appeals from a judgment revoking the sentence of probation, imposing a term of incarceration of 1 to 3 years and leaving the previously imposed fine undisturbed.

The waiver of the right to appeal encompasses defendant’s contention that the part of the sentence imposing a term of incarceration is unduly harsh and severe (see, People v Hidalgo, 91 NY2d 733, 734). Further, the challenge to the fine is not properly before us on the appeal from the judgment resentencing defendant. The fine was imposed as part of the original sentence in the judgment of conviction from which no appeal was taken (see, People v Rutnik, 198 AD2d 617; see also, People v Ambriati, 239 AD2d 948, lv denied 90 NY2d 901). (Appeal from Judgment of Cayuga County Court, Contiguglia, J.— Violation of Probation.) Present — Green, J. P., Pine, Wisner, Callahan and Boehm, JJ.