People v DeRosa (Cristina)

[*1] People v DeRosa (Cristina) 2012 NY Slip Op 52471(U) Decided on December 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT:: MOLIA, J.P., NICOLAI and IANNACCI, JJ
2011-2119 N CR.

The People of the State of New York, Respondent,

against

Cristina DeRosa, Appellant.

Appeal from an amended judgment of the District Court of Nassau County, First District (Francis Ricigliano, J.), rendered July 19, 2011. The amended judgment revoked a sentence of probation previously imposed, upon a finding that defendant had violated conditions thereof, upon her admission, and imposed a sentence of 120 days' imprisonment upon her previous conviction of aggravated driving while intoxicated.

ORDERED that the amended judgment of conviction is affirmed.

In 2008, defendant pleaded guilty to aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a]) and was sentenced to three years' probation. At proceedings held on March 22, 2011, defendant admitted that she had violated conditions of probation by failing to submit to a test to determine whether she had been using alcohol and by failing to pay restitution. The District Court adjourned the matter for sentencing and indicated that a sentence of continued probation would be imposed upon defendant's compliance with the conditions of probation, including the wearing of an electronic monitoring bracelet.

On July 19, 2011, before announcing sentence, the court conducted an inquiry regarding defendant's compliance with the terms and conditions of probation and reviewed three updated [*2]reports from the probation department that had been prepared by the probation department subsequent to defendant's admission of violation of probation on March 22, 2011, indicating defendant's continued failure to comply in that she had tested positive for alcohol on numerous occasions and/or had tampered with the alcohol monitoring device, and that she had removed the device for a period of time. Defense counsel's request for an evidentiary hearing was denied. However, defense counsel provided the court with documentation purporting to refute the information contained in the three updated reports. After the court reviewed defendant's submissions and the updated probation reports, it sentenced defendant to 120 days' imprisonment.

Contrary to defendant's contention, the District Court was not required to conduct a hearing before imposing sentence upon her (see CPL 400.10 [1]; People v Outley, 80 NY2d 702, 712 [1993]; People v McDevitt, 97 AD3d 1039 [2012]). In order to comply with due process, "the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate" (McDevitt, 97 AD3d at 1041, quoting Outley, 80 NY2d at 715). It is within the sentencing court's discretion whether to hold a "summary hearing" (CPL 400.10 [3]). Here, the record indicates that the court reviewed the updated probation reports and the documents presented by defense counsel, and afforded defense counsel an opportunity to comment on the facts before imposing sentence (see CPL 400.10; Outley, 80 NY2d at 711-713; People v Knowles, 244 AD2d 425, 426 [1997]).

Accordingly, the amended judgment is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 24, 2012