People v. Wolfe

254 A.D.2d 528, 679 N.Y.S.2d 345, 1998 N.Y. App. Div. LEXIS 10889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1998
• Status: Published

Opinion

Crew III, J.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered January 16, 1998, which revoked defendant’s probation and imposed a sentence of imprisonment.

On October 28, 1996, defendant was convicted of forgery in the second degree and sentenced to, inter alia, five years’ probation. As part of his conditions of probation, defendant was ordered to abstain from the use of alcohol, undergo drug and alcohol evaluation, and refrain from operating a motor vehicle. On October 17, 1997, defendant was charged with a violation of probation by reason of his alleged use of alcohol and operation of a motor vehicle. Defendant admitted the probation violation and, on January 16, 1998, was resentenced to six months’ incarceration and continued on probation. Defendant now appeals.

Defendant’s primary contention on appeal is that the condition of probation prohibiting him from operating a motor vehicle serves no rehabilitative purpose, is solely punitive in nature and is therefore illegal. Inasmuch as the resentence here occurred more than 30 days after the original sentence and defendant failed to file a notice of appeal from the original sentence imposed, defendant is precluded from challenging the condition of probation that formed the basis for the violation (see, CPL 450.30 [3]). And, insofar as defendant’s appeal can be seen as a challenge to the legality of that provision on resentence, we reject such contention. We have considered defendant’s remaining contentions and find them equally without merit.

Mikoll, J. P., Mercare, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Columbia County for farther proceedings pursuant to CPL 460.50 (5).