Opinion
KA 02-00367
October 2, 2003.
Appeal from a judgment of Oswego County Court (Hafner, Jr., J.), entered December 19, 2001, which revoked defendant's probation and imposed a sentence of imprisonment.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR DEFENDANT-APPELLANT.
DENNIS N. HAWTHORNE, SR., DISTRICT ATTORNEY, OSWEGO (DONALD E. TODD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment revoking his probation and imposing an indeterminate term of incarceration of 2a to 7 years. Defendant failed to preserve for our review his contention that County Court erred in recalling a police officer who had testified for the People in order to question him regarding defendant's level of intoxication at the time of the alleged assault underlying one of the specifications of delinquency ( see People v Gray, 86 N.Y.2d 10, 19). In any event, that contention lacks merit ( see generally People v. Recor, 209 A.D.2d 831, affd 87 N.Y.2d 933; see also Matter of Darwin M. v. Jacobs, 69 N.Y.2d 957). Contrary to the further contention of defendant, the evidence is legally sufficient to support the court's determination that he violated the conditions of his probation ( see People v. Pettway, 286 A.D.2d 865, lv denied 97 N.Y.2d 686) . Defendant testified at the violation of probation hearing that he failed to advise his probation officer of his change in residence, failed to attend his weekly Alcoholics Anonymous meetings, failed to inform his probation officer that he had been arrested, failed to abstain from the use of alcohol and failed to make any payments toward the court-imposed fine. The only specification of delinquency that defendant challenged was the allegation that he assaulted his girlfriend. However, the court's determination sustaining that specification is also supported by legally sufficient evidence.
Because there were no "`changes in defendant's status, conduct or condition which may have occurred * * * since the previous sentence of probation was imposed,'" an updated presentence report was not necessary ( People v. Depolo, 291 A.D.2d 841, quoting People v. Tyrrell, 101 A.D.2d 946, 947). The court was in the best position to make a determination regarding defendant's competency, and we see no reason to disturb its determination that a CPL 730.30 examination was not necessary ( see People v. Garrasi, 302 A.D.2d 981). Defendant testified in a rational manner at the hearing and made an impassioned plea for leniency before resentencing. Thus, the court did not abuse its discretion in failing sua sponte to conduct a competency hearing, inasmuch as there is no evidence in the record that would have led the court to question the ability of defendant to understand the nature of the proceedings or to assist in his own defense. Finally, we conclude that defendant received effective assistance of counsel ( see People v Baldi, 54 N.Y.2d 137, 147), and his sentence is not unduly harsh or severe.