| People v Jordan |
| 2017 NY Slip Op 02472 [148 AD3d 1461] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JeromeJordan, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered September 19, 2013, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2009, defendant was sentenced to five years of probation upon his conviction of burglaryin the third degree.[FN*] InJanuary 2013, while on probation, defendant was arrested at a residence in Schenectady Countyand charged with multiple crimes, the most serious of which was criminal possession of acontrolled substance in the first degree, after police officers executed a search warrant andrecovered a handgun and a large quantity of cocaine. Thereafter, defendant was charged withviolating certain conditions of his probation, some that pertained to his arrest and others that didnot. Following an evidentiary hearing, County Court found that he violated a number of theseconditions, revoked his probation and resentenced him to 2 to 6 years in prison on the underlyingcrime. Defendant now appeals.
Preliminarily, it is to be noted that "[a] violation of probation proceeding is summary innature and a sentence of probation may be revoked if the defendant has been afforded an [*2]opportunity to be heard and the court determines by apreponderance of the evidence that a condition of the probation has been violated" (People v DeMarco, 60 AD3d1107, 1108 [2009] [internal quotation marks and citations omitted]; see CPL 410.70[3]; People v Rockefeller, 79 AD3d1527, 1527 [2010], lv denied 16 NY3d 862 [2011]). Here, the probation officeroverseeing defendant's case testified that defendant was discharged from the offender workforcedevelopment program, which he was required to complete as a condition of his probation, whenhe failed to attend the first class. This was verified by documentation provided by the AlbanyCounty Probation Department. The officer further testified that he obtained information from theDivision of Criminal Justice Services that defendant was arrested in January 2013, a violation ofanother condition of defendant's probation, and that he received the incident report prepared inconnection therewith. Significantly, the police sergeant who was present at the time ofdefendant's arrest gave detailed testimony concerning the circumstances and indicated that aquantity of cocaine and a handgun bearing defendant's DNA were recovered, violating additionalconditions of defendant's probation that prohibited him from possessing drugs or firearms.Furthermore, an affidavit that defendant signed before a notary public in which he admitted topossessing the handgun was read into the record at the hearing. In view of the foregoing, apreponderance of the evidence supports County Court's finding that defendant violated certainconditions of his probation and that such violations justified revocation (see People v Turner, 136 AD3d1111, 1112 [2016], lv denied 27 NY3d 1140 [2016]; People v Setzer, 83 AD3d 1123,1124 [2011]).
Although defendant argues in his pro se brief that the revocation must be overturned becausethe evidence seized during the search was subsequently ruled inadmissible in his criminal casedue to a defective search warrant, we are not persuaded. The proceedings in defendant's criminalcase are not dispositive here as "the more limited purpose of a probation revocation proceeding'is to determine if defendant's subsequent acts violate the conditions of the original sentence notwhether the acts constitute a crime' " (People v Ruff, 50 AD3d 1167, 1168 [2008], quoting Matter ofDarvin M. v Jacobs, 69 NY2d 957, 959 [1987]).
As for the term of imprisonment imposed upon resentencing, we find no merit to defendant'sclaim that it is harsh and excessive. Given defendant's criminal history and the situation that heplaced himself in at the time of his arrest, we find no extraordinary circumstances or any abuse ofdiscretion warranting a reduction of the resentence in the interest of justice (see People v Washington, 138 AD3d1246, 1247-1248 [2016]; People v Rockefeller, 79 AD3d at 1528). Defendant'sremaining contentions have been considered and found to be without merit.
McCarthy, Garry, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Although defendant wassentenced in Schenectady County, his probation supervision was subsequently transferred toAlbany County.