People v. Rollins

50 A.D.3d 1535, 856 N.Y.S.2d 417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2008
• Status: Published

Opinion

Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered August 16, 2006. The judgment revoked defendant’s interim probation supervision and imposed a sentence of incarceration.

It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence of incarceration is unanimously dismissed and the judgment is affirmed.

Memorandum: Defendant appeals from a judgment revoking his interim probation supervision (see CPL 390.30 [6]) and sentencing him to a term of incarceration upon his conviction, based on a plea of guilty, of criminal contempt in the second degree (Penal Law § 215.50 [3]). County Court and the parties have improperly characterized the procedure to revoke the interim probation supervision as a violation of probation hearing (see CPL 410.70). The procedures set forth in CPL 410.70 do not apply where, as here, there has been no sentence of probation (cf. People v Trathen, 2 AD3d 1065 [2003], lv denied 1 NY3d 635 [2004]; see generally People v Rodney E., 77 NY2d 672, 674-676 [1991]). Indeed, interim probation supervision is imposed prior to sentencing. We thus conclude that the presentence procedures set forth in CPL 400.10 apply herein, and we further conclude that the summary hearing conducted by the court was sufficient pursuant to CPL 400.10 (3) to enable the court to “assure itself that the information upon which it bas[ed] the sentence [was] reliable and accurate” (People v Outley, 80 NY2d 702, 712 [1993]). The hearing was “of sufficient depth” to enable the court to determine that defendant failed to comply with the terms and conditions of his interim probation supervision (id. at 713; cf. People v Collins, 225 AD2d 1050 [1996]).

To the extent that defendant contends that the sentence is unduly harsh and severe, we conclude that his contention is moot because he has completed serving his sentence (see People v Griffin, 239 AD2d 936 [1997]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.