Appeal from resentences of the Justice Court of the Village of Croton-on-Hudson, Westchester County (Sam R. Watkins, J.), imposed June 17, 2009, which, upon defendant's convictions of driving while intoxicated per se and driving while intoxicated, imposed conditions of probation and a fine in addition to the conditions of probation previously imposed on March 5, 2008.
Decided on November 3, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
ORDERED that the resentences are affirmed.
On March 5, 2008, defendant pleaded guilty to driving while intoxicated per se (Vehicle and Traffic Law § 1192 ) and driving while intoxicated (Vehicle and Traffic Law § 1192 ), and was sentenced to a term of probation and a fine. Defendant appealed to this court, which modified the judgments of conviction by vacating the sentence and remitting the matter to the Justice Court for resentencing (22 Misc 3d 129[A], 2009 NY Slip Op 50057[U]). At the June 17, 2009 resentencing, defendant submitted a presentence memorandum containing findings by physicians that he does not suffer from alcohol dependency or abuse. The People introduced a presentence report, prepared by the Probation Department, which included a finding that defendant has a substance abuse problem with regard to alcohol. Defense counsel argued that the Probation Department's report was incomplete, in part because it did not contain the positive conclusions of Phelps Alcohol Treatment Services regarding defendant's level of alcohol use. The court reviewed the documentation offered by defendant and the People, concluded that both defendant's presentence memorandum and the Probation Department's report were "sufficient" for the purposes submitted, and sentenced defendant to concurrent terms of three years' probation, a revocation of driving privileges as set forth in a "DWI/DWAI Drug Conditions of Probation Form," which defendant signed, and a fine, and ordered that defendant be credited with time served on the probationary period from the initial sentencing until that sentence was vacated. Defendant appeals from the resentences, arguing that the Justice Court relied upon an inaccurate and incomplete presentence report when it sentenced defendant to two concurrent terms of probation and to a revocation of driving privileges as a condition thereof, that he should be credited with time served on the initial sentences from the date of the initial sentencing until said sentence was vacated, and that the resentences are unduly harsh and excessive.
The resentences are affirmed. The terms of the resentences are consistent with the alternative sentencing scenarios presented by the Justice Court at the plea proceeding. Where a sentence is consistent with what a defendant understood to be a possible consequence of his or her plea, the defendant has "no basis . . . to complain that [the] sentence was excessive" (People v Torres, 69 AD3d 886, 887 ; see People v Kazepis, 101 AD2d 816, 817 ; see also People v McCants, 73 AD3d 1086 ).
"Sentencing courts, in the exercise of their unique judicial function in criminal proceedings, are . . . allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment" (People v Day, 73 NY2d 208, 212 ). While a sentencing court also "must assure itself that the information upon which it bases the sentence is reliable and accurate" (People v Outley, 80 NY2d 702, 712 ; see also People v Naranjo, 89 NY2d 1047, 1049 ), the determination of the weight to accord the information and its impact on sentencing considerations is largely relegated to the discretion of the sentencing court. Even if it be assumed that the presentence report was incomplete, defendant, through counsel, availed himself of the opportunity to submit "mitigatory or explanatory" (People v Perry, 36 NY2d 114, 120 ) proof to correct the perceived deficiencies in the report (see CPL 390.40; People v Clark, 61 AD3d 1179, 1181 ), namely a sentencing memorandum and letters bearing on the issue of the nature of defendant's involvement with alcohol. Upon a review of that documentation, we cannot say that the Justice Court abused its sentencing discretion in imposing terms of probation with the attendant driving restrictions (People v Suitte, 90 AD2d 80 ) and find "no mitigating or extraordinary circumstances warranting a reduction of the agreed-upon sentence in the exercise of our interest of justice jurisdiction" (People v Vega, 73 AD3d 1218, 1219 ). As to credit for time served following the initial sentencing, the terms of the resentences require that defendant receive such credit. We find defendant's remaining claims unpreserved for appellate review (see People v Corker, 67 AD3d 926 ; People v Rosario, 22 AD3d 871 ).
Accordingly, the resentences are affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision Date: November 03, 2010
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