People v. Parsons

Feb 10, 2005
Versions:15 A.D.3d 728
789 N.Y.S.2d 451
2005 N.Y. App. Div. LEXIS 1459

Cardona, P.J. Appeal from a judgment of the County Court of Delaware County (Becker, J.), entered March 17, 2003, which revoked defendant‘s probation and imposed a sentence of imprisonment.

Defendant was convicted of reckless endangerment in the first degree and aggravated unlicensed operation of a motor vehicle in the first degree and, on February 27, 2002, was sentenced to five years’ probation. In January 2003, defendant was charged with violating the terms of his probation by, on more than one occasion, possessing and consuming alcohol, failing to report to his probation officer, being twice arrested and failing to make required restitution payments. After a hearing, County Court determined that defendant had violated the terms of his probation and sentenced him to concurrent prison terms of 1 to 3 years upon his aggravated unlicensed operation conviction and 2 to 6 years upon his reckless endangerment conviction, resulting in this appeal.

Defendant‘s admissions at the hearing that he committed the violations as charged were sufficient to establish by a preponderance of the evidence that defendant violated the terms of his probation (see CPL 410.70 [3]; People v Romeo, 9 AD3d 744, 745 [2004]; People v Meyer, 1 AD3d 721 [2003], lv denied 1 NY3d 631 [2004]). As there is no evidence that County Court abused its discretion, its decision to revoke defendant‘s probation will not be disturbed (see People v Murray, 12 AD3d 838, 840 [2004]; People v Barber, 280 AD2d 691, 694 [2001], lv denied 96 NY2d 825 [2001]). Furthermore, given the lack of extraordinary circumstances warranting a reduction, we find the imposition of aggregate prison terms of 2 to 6 years neither harsh nor excessive (see People v Rowland, 11 AD3d 825, 825-826 [2004]; People v Spriggs, 8 AD3d 833, 833 [2004], lv denied 3 NY3d 681 [2004]; People v Potter, 6 AD3d 813, 814 [2004]).

Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed.

Lahtinen, J. Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered January 3, 2003, which revoked defendant‘s interim probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to one count of driving while intoxicated as a felony in satisfaction of a four-count indictment and County Court placed her on interim probation imposing several conditions, including the successful completion of an alcohol/substance abuse program. Defendant allegedly violated various terms of her probation and a warrant for her arrest was issued in December 2002. After her arrest by St. Regis Mohawk Tribal Police, defendant appeared before County Court with her attorney and admitted violating her interim probation. Although the updated presentence report recommended 180 days in jail and further probation, County Court sentenced her to a term of incarceration of 1 1/3 to 4 years. Defendant appeals.

Initially, defendant argues that her arrest by St. Regis Mohawk Tribal Police was unlawful because the Tribal Police were not authorized to effect the arrest. The issue is not preserved for review (see People v Dixon, 295 AD2d 699, 700 [2002], lv denied 98 NY2d 709 [2002]) but, nevertheless, is meritless (see generally People v Hale, 93 NY2d 454 [1999]).

We also reject defendant‘s contention that her sentence was harsh and excessive and should be reduced in the interest of justice. Defendant‘s initial violation of the terms of her probation ostensibly resulted from her decision to leave a treatment program in order to be near her dying father. However, after her father‘s death, defendant made no effort to return to the