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People v. Cerone

State of New York Supreme Court, Appellate Division Third Judicial Department


July 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JILL MARYANN CERONE, APPELLANT.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: May 27, 2010

Before: Mercure, J.P., Peters, Spain, Malone Jr. and Kavanagh, JJ.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered November 18, 2008, which revoked defendant's probation and imposed a sentence of imprisonment.

In April 2007, following her conviction of criminal possession of a forged instrument in the second degree, defendant was sentenced to a five-year period of probation. In June 2008, a violation of probation petition was filed, and defendant subsequently admitted that she violated the terms of her probation by consuming alcohol. County Court withheld resentencing and continued defendant's probation, dependent upon her qualification for admission into a drug court treatment program. While the application for admission was pending, defendant allegedly violated the terms of her probation at least twice, resulting in the drug court team denying her application. County Court thereafter revoked defendant's probation and resentenced her to a term of 2 to 6 years in prison. Defendant now appeals.

We affirm. Defendant's failure to move to withdraw her plea of guilty to the violation petition or vacate the judgment of conviction renders her challenge to the voluntariness of her plea unpreserved for our review (see People v Diaz, 26 AD3d 644, 645 [2006], lv denied 7 NY3d 755 [2006]; People v Banks, 305 AD2d 812, 812 [2003], lv denied 100 NY2d 578 [2003]). Furthermore, her contention that County Court erred in declining to order a second presentence report is similarly unpreserved in light of her failure to request an updated report or move to vacate resentencing (see People v Sander, 47 AD3d 1012, 1013 [2008], lv denied 10 NY3d 844 [2008]; People v Henkel, 37 AD3d 873, 873 [2007], lv denied 8 NY3d 985 [2007]). Finally, having reviewed the record, we discern neither an abuse of discretion by County Court nor extraordinary circumstances warranting a reduction in the sentence (see People v Carter, 59 AD3d 750, 750 [2009]; People v Cruz, 53 AD3d 986, 986 [2008]).

Peters, Spain, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed.

20100715

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