| People v Sacco |
| 2007 NY Slip Op 08258 [44 AD3d 1076] |
| October 30, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Sacco, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), forrespondent.
Appeal by the defendant from an amended judgment of the County Court, Orange County(De Rosa, J.), rendered March 17, 2005, revoking a sentence of probation previously imposed bythe same court upon a finding that he violated a condition thereof, after a hearing, and imposing asentence of imprisonment upon his previous conviction of attempted use of a child in a sexualperformance.
Ordered that the amended judgment is affirmed.
While serving a sentence of probation imposed upon his conviction of attempted use of achild in a sexual performance, the defendant was convicted of driving while impaired incontravention of Vehicle and Traffic Law § 1192 (1). A petition was subsequently filedalleging that the defendant had violated a condition of his probation prohibiting him fromcommitting any additional crimes, offenses, or violations, and a special condition prohibiting himfrom consuming alcohol. At the ensuing violation hearing, the defendant argued that the specialcondition relating to alcohol consumption was not actually a term of his probation because it hadbeen stricken by the court at sentencing. The court found that an ambiguity existed as to whetherthe special condition had indeed been removed from the terms of the defendant's probation, andthat it thus could not conclude that he had violated the special condition. However, the courtrevoked probation in light of the uncontroverted proof that the defendant had violated thecondition prohibiting him from committing any additional crimes, offenses, or violations.[*2]
On appeal, the defendant contends that his due processrights were violated because the court denied him an adjournment to obtain certain evidencewhich allegedly would have substantiated his claim that the special condition relating to alcoholconsumption was not a term of his probation. However, the court revoked the defendant'sprobation based solely upon undisputed evidence that he violated a condition thereof bycommitting an additional crime. Under these circumstances, the due process violations alleged bythe defendant did not affect a substantial right (see CPL 470.05 [1]) and are academic.
The sentence imposed was not excessive (see People v Benezra, 262 AD2d 327[1999]; People v Suitte, 90 AD2d 80 [1982]). Prudenti, P.J., Krausman, Fisher andDillon, JJ., concur.