People v McGregor

People v Mcgregor 2014 NY Slip Op 05466 Decided on July 24, 2014 Appellate Division, Third 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 and Entered: July 24, 2014
105519

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

GARY L. McGREGOR, Appellant.

Calendar Date: June 2, 2014
Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

John A. Cirando, Syracuse, for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for respondent.

McCarthy, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 21, 2012, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2009, defendant pleaded guilty to driving while intoxicated and was sentenced to a five-year term of probation. In May 2012, a declaration of delinquency was filed and, following a hearing, defendant's probation was continued to allow him to participate in a treatment program. Subsequently, an amended declaration of delinquency was filed against defendant in September 2012, and he pleaded guilty to violating his probation by failing to comply with treatment, consuming alcohol and operating a motor vehicle. In exchange for his plea, County Court sentenced defendant to a prison term of 14 to 42 months and a three-year conditional discharge requiring him to install an ignition interlock device. Defendant now appeals.

We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved for review inasmuch as the record fails to indicate that he moved to withdraw his plea of guilty to the probation violation (see People v Secore, 102 AD3d 1057, 1058 [2013], lv denied 21 NY3d 1019 [2013]; People v Cogswell, 94 AD3d 1236, 1237 [2012], lv denied 19 NY3d 958 [2012]). Moreover, defendant made no statements during his plea allocution that were inconsistent with his guilt or that cast doubt on the voluntariness of his plea, so the exception to the preservation requirement is not applicable (see People v Secore, 102 AD3d at 1058; People v Lewis, 69 AD3d [*2]1232, 1234 [2010]).

We reject defendant's contention that his sentence was harsh and excessive. Given his repeated inability to comply with the terms of his probation that afforded him the opportunity to avoid a prison term, we find no abuse of discretion or extraordinary circumstances warranting a modification of his sentence in the interest of justice (see People v Riley, 97 AD3d 982, 983 [2012], lv denied 20 NY3d 935 [2012]; People v Dowling, 92 AD3d 1034, 1035 [2012], lv denied 18 NY3d 993 [2012]). We have examined defendant's remaining contentions and find them to be without merit.

Stein, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.