People v. Passino

Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered June 21, 2005. 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 imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [9]) and sentencing him to a four-year term of imprisonment. Defendant failed to preserve for our review his contention that he was entitled to specific performance of County Court’s previous offer of a two-year term of imprisonment, which was conditioned upon defendant’s admission to a violation of probation and no further violations of the conditions of defendant’s probation prior to sentencing (see generally People v McCray, 251 AD2d 135 [1998], lv denied 92 NY2d 901 [1998]). In any event, “the record establishes that [the c]ourt made no sentencing promise ... in the event that defendant [further] violated the conditions of his probation” (People v Glen, 278 AD2d 834 [2000], lv denied 96 NY2d 800 [2001]; see also People v Esteves, 286 AD2d 342, 342-343 [2001], lv denied 97 NY2d 681 [2001]). Contrary to the further contention of defendant, he was not entitled to a violation hearing prior to being sentenced inasmuch as he admitted that he further violated the conditions of his probation (see generally People v Eveland, 42 AD3d 755 [2007], lv denied 9 NY3d 961 [2007]; People v Hope, 32 AD3d 1115, 1116 [2006]). In addition, the court was not required to.order an updated presentence report because it relied on materials from the Probation Department, which “ ‘constituted the functional equivalent of an updated [presentence] report’ ” (People v Fairman, 38 AD3d 1346, 1347 [2007], lv denied 9 NY3d 865 [2007]; see People v Somers, 280 AD2d 925, lv denied 96 NY2d 806 [2001]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.