People v. Ralston , 756 N.Y.S.2d 808 ( 2003 )

—Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered May 24, 2000, which revoked defendant’s probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking probation based upon a finding that he violated its conditions and resentencing him to an indeterminate term of incarceration of IV3 to 4 years on the underlying conviction of grand larceny in the fourth degree (Penal Law § 155.30). In the posture of this appeal, the contention of defendant that Supreme Court erred in ordering him to pay restitution at the time of the original sentence of probation without affording him an opportunity to withdraw his guilty plea is not properly before us (see People v Klinkowski, 281 AD2d 972, 973 [2001], lv denied 96 NY2d 831 [2001]; People v Swank, 278 AD2d 861 [2000], lv denied 96 NY2d 807 [2001]; People v Panek, 256 AD2d 1238 [1998], lv denied 93 NY2d 856 [1999]; People v Holmes, 226 AD2d 1122 [1996], lv denied 88 NY2d 966 [1996]; see also CPL 450.30 [1], [3]). The sentence imposed upon defendant’s violation of probation is not unduly harsh or severe. Present — Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.