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The People of the State of New York, Respondent v. Michael Dugger

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 18, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL DUGGER, DEFENDANT-APPELLANT.

Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered January 2, 2008.

People v Dugger

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 18, 2011

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.

The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of attempted arson in the third degree (Penal Law §§ 110.00, 150.10 [1]) and imposing a sentence of imprisonment based upon his admission that he violated the terms and conditions of his probation. Because the sentence of imprisonment for the violation of probation was imposed more than 30 days after the original sentence and defendant had not previously filed a notice of appeal from the original judgment of conviction, defendant may appeal only from the sentence of imprisonment (see CPL 450.30 [3]; People v Johnson, 77 AD3d 1441; see also People v Coble, 17 AD3d 1165, lv denied 5 NY3d 787). Thus, the contentions of defendant with respect to the original judgment of conviction, i.e., that County Court erred in delegating the calculation of restitution to the Probation Department and in denying him due process by refusing to conduct a restitution hearing, are not properly before us. The sentence of imprisonment is not unduly harsh or severe.

Entered: November 18, 2011

Patricia L. Morgan Clerk of the Court

20111118

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