| People v Ferry |
| 2019 NY Slip Op 03106 [171 AD3d 1398] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Donald Ferry, Appellant. |
Craig Meyerson, Peru, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered December 21, 2016, which revoked defendant's probation andimposed a sentence of imprisonment.
In 2015, defendant pleaded guilty to attempted sexual abuse in the first degree (two counts)and was sentenced to six months in jail, to be followed by 10 years of postrelease supervision. In2016, a violation of probation petition was filed, alleging that defendant had violated certainconditions of his probation. Following a hearing, County Court found that defendant had violatedhis probation and thereafter revoked defendant's probation and resentenced him to an aggregateprison term of eight years, to be followed by 10 years of postrelease supervision. Defendantappeals.
We affirm. "A violation of probation proceeding is summary in nature and a sentence ofprobation may be revoked if the defendant has been afforded an opportunity to be heard and thecourt determines by a preponderance of the evidence that a condition of the probation has beenviolated" (People v Thomas, 163AD3d 1293, 1294 [2018] [internal quotation marks, brackets and citations omitted], lvdenied 32 NY3d 1068 [2018]; seePeople v Travis, 156 AD3d 1399, 1399 [2017], lvs denied 30 NY3d 1120[2018]). The conditions of defendant's probation included that he shall not "initiate, establish ormaintain contact and/or communicate with or reside in the same residence as any person underthe age of 17 years without the prior consent of the Probation Department."
At the hearing, defendant admitted to several instances where the six-year-old daughter of afriend was at defendant's house while he was present, without having obtained consent from hisprobation officer. Although defendant testified that there was always another adult present in thehouse while the child was there and that he believed that consent from his probation officer wasnot required under those circumstances, one probation officer testified that he informeddefendant that only an adult preapproved as a safeguard by the Probation Department couldsupervise his contact with a child. Another probation officer testified that defendant was told hecould not have any children around him without permission from the Probation Department,regardless of whether another adult was present or supervising. According deference to CountyCourt's credibility determinations, we conclude that the People established by a preponderance ofthe evidence that defendant violated the terms of his probation (see People v Eggsware, 125 AD3d1057, 1058 [2015], lv denied 25 NY3d 1162 [2015]; People v Cruz, 35 AD3d 898, 899[2006], lv denied 8 NY3d 845 [2007]).[FN*]
Defendant argues that the People's failure to provide certain documents and a videotape atthe hearing constituted Rosario violations warranting a reversal of the finding of aprobation violation. Contrary to defendant's contention, Rosario violations do notconstitute per se errors requiring reversal (see CPL 240.75; People v Crandall, 38 AD3d 996,997 [2007], lv denied 9 NY3d 842 [2007]; People v Nelson, 1 AD3d 796, 797 [2003], lv denied 1NY3d 631 [2004]), and he has not claimed, let alone demonstrated, that the alleged violationsmaterially contributed to the finding of a probation violation (see People v Crandall, 38AD3d at 997; People v Nelson, 1 AD3d at 797). Finally, we discern neither extraordinarycircumstances nor an abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Jordan, 148AD3d 1461, 1463 [2017]; People vWashington, 138 AD3d 1246, 1247 [2016]).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Having determined that thePeople established that defendant violated a condition of his probation by a preponderance of theevidence, we do not address the finding that defendant also violated another condition of hisprobation (see People v Roberge, 293 AD2d 913, 914 n 2 [2002], lv denied 98NY2d 680 [2002]).