Marquardt v. Marquardt

Apr 20, 2012
Versions:94 A.D.3d 1436
942 N.Y.S.2d 824

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered September 8, 2009. 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 assault in the second degree (Penal Law § 120.05 [6]) and criminal mischief in the third degree (§ 145.05 [2]) and sentencing him to concurrent terms of imprisonment. Contrary to defendant’s contention, County Court properly determined that the People met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see People v Pringle, 72 AD3d 1629, 1629 [2010], lv denied 15 NY3d 855 [2010]; People v Donohue, 64 AD3d 1187, 1188 [2009]; People v Bergman, 56 AD3d 1225 [2008], lv denied 12 NY3d 756 [2009]). The People provided the necessary “residuum of competent legal evidence” (Pringle, 72 AD3d at 1630 [internal quotation marks omitted]), and “the decision to revoke his probation will not be disturbed, [absent a] clear abuse of discretion” (Bergman, 56 AD3d 1225 [internal quotation marks omitted]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.