At page 1229 Establishing probation violation by preponderance of evidence8 citing cases“a court may revoke a defendant's probation provided the 'defendant has been afforded an opportunity to be heard and the court determines by a preponderance of the evidence that a condition of the probation has been violated”
- People v. Relyea, 250 A.D.3d 1608 (N.Y. App. Div. 4th Dep't 2026).publishedWe reject defendant's contention that the People failed to establish by a preponderance of the evidence that he violated the terms and conditions of his probation ( see People v Robinson , 147 AD3d 1351 , 1351 [4th Dept 2017], lv denied 29…
- People v. Robinson, 147 A.D.3d 1351 (N.Y. App. Div. 4th Dep't 2017).published We reject defendant’s contention that the People failed to establish by a preponderance of the evidence that he violated the terms and conditions of his probation (see People v Ortiz, 94 AD3d 1436, 1436 [2012], lv denied 19 NY3d 999 [2012]…
- People v. Alexander, 110 A.D.3d 1111 (N.Y. App. Div. 3d Dep't 2013).published Finally, as to defendant’s claim that her resentence is harsh and excessive, we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the resentence in the interest of justice (see People v Fitzgerald, 1…
- People v. McQuality, 95 A.D.3d 1369 (N.Y. App. Div. 3d Dep't 2012).published “A court may revoke a defendant’s probation provided the ‘defendant has been afforded an opportunity to be heard and the court determines by a preponderance of the evidence that a condition of the probation has been violated’ ” (People v W…
- People v. Campbell, 79 A.D.3d 1458 (N.Y. App. Div. 3d Dep't 2010).publishedContrary to defendant’s claim, the record reveals that her probation violations were established by a preponderance of the evidence (see People v Wells, 69 AD3d 1228, 1229 [2010]; People v Oehler, 52 AD3d 955, 956 [2008], lv denied 11 NY3d…
v.
Brenda J. Wells
In April 2008, defendant was convicted of driving while intoxicated and sentenced to five years of probation. The terms of probation included that defendant “ [m]eaningfully participate in, cooperate with and successfully complete any alcohol or substance abuse counseling and/or treatment program as directed by the Probation Department” and that she not use alcoholic beverages. County Court subsequently found that defendant had violated these terms, revoked her probation and resentenced her to a prison term of 1 to 3 years. Defendant now appeals.
A court may revoke a defendant’s probation provided the “defendant has been afforded an opportunity to be heard and the court determines by a preponderance of the evidence that a condition of the probation has been violated” (People v Jangrow, 34 AD3d 991, 991-992 [2006]; accord People v DeMarco, 60 AD3d 1107, 1108 [2009]). Here, defendant contends that there was insufficient evidence establishing her probation violation. We disagree. With respect to the allegation that defendant failed to complete a prescribed treatment program, there is evidence in the record that defendant failed to either participate in or complete various prescribed programs, and the case manager of a program that defendant did participate in testified that defendant was dismissed from the program due to disruptive and disrespectful behavior. Moreover, defendant admittedly violated the term of probation forbidding the use of alcohol, testifying that she drank beer the day after being placed on probation. Under these circumstances, we find no reason to disburb County Court’s determination that defendant violated her probation (see People v Garner, 56 AD3d 951, 952 [2008], lv denied 12 NY3d 783 [2009]). We find similarly unavailing defendant’s contention that her sentence was harsh and excessive, as our review of the record reveals no clear abuse of discretion by County Court nor the existence of extraordinary circumstances warranting a reduction of the resentence (see People v Hunter, 62 AD3d 1207, 1208 [2009]; People v Carter, 59 AD3d 750, 750 [2009]; People v Wheeler, 52 AD3d 948, 948 [2008]).
Cardona, EJ., Peters, Rose and McCarthy, JJ., concur. Ordered that the judgment is affirmed.