| People v Ruff |
| 2008 NY Slip Op 02911 [50 AD3d 1167] |
| April 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Peter C. Ruff,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Cheryl A. Mancini of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered February 8, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.
While serving a five-year term of probation upon his plea of guilty to attempted criminalpossession of a controlled substance in the third degree, defendant was charged in September2004 with violating the terms of his probation by failing to maintain contact with his probationofficer or to present proof of employment. He absconded after being accused of rape by the15-year-old sister of his then-girlfriend, and had no contact with his probation officer until March2005 when he turned himself in. Following a jury trial, defendant was acquitted of first degreerape and criminal sexual act in the first degree, the sole charges submitted to the jury. Defendantwas then charged in an amended violation of probation petition with violating additionalconditions of his probation, namely, for having been "arrested . . . and charged withRape 1st., the result of him allegedly having sex with his paramour's 15 year old sister, on8-30-04," and for absconding and remaining in hiding for several months. Following a probationviolation hearing, County Court determined that defendant had violated the terms of hisprobation, which the court revoked, and it imposed a prison sentence of 3 to 9 years. Defendantnow appeals.
Initially, despite defendant's admission to being arrested and absconding, we find no [*2]error in County Court's refusal to permit him to plead guilty to thecharges in the amended violation of probation petition, given his refusal to also admit that he hadengaged in the underlying sexual misconduct charged in that amended petition (see People vHaas, 245 AD2d 825, 826 [1997]; see also CPL 410.70 [2]). Defendant was onnotice well in advance of the violation hearing that the People would not consent to his plea ofguilty unless he admitted the sexual conduct and that the court's plea approval was so contingent.
Next, disagreeing with defendant's contrary claims, we find that the People met their burdenof proving by a preponderance of the evidence that defendant failed to obey conditions of hisprobation (see CPL 410.70 [3]; see also People v Provost, 35 AD3d 899, 900 [2006]). When hetestified, defendant admitted absconding and being arrested and, while he denied any sexualcontact, we accord great weight to County Court's express determination to credit the victim'saccount at the hearing of forcible rape (see People v Cruz, 35 AD3d 898, 899 [2006], lv denied 8NY3d 845 [2007]). Defendant's acquittal after a criminal trial did not foreclose the posthearingfinding that he violated conditions of his probation, given the differing charges and standards ofproof in each matter (see People v Brown, 268 AD2d 592, 593 [2000], lv denied94 NY2d 945 [2000]; People v Conway, 263 AD2d 548, 549 [1999], lv denied94 NY2d 861 [1999]). Indeed, the more limited purpose of a probation revocation proceeding "isto determine if defendant's subsequent acts violate the conditions of the original sentence notwhether the acts constitute a crime" (Matter of Darvin M. v Jacobs, 69 NY2d 957, 959[1987]).
A review of the record also reveals that defendant never requested an updated presentencereport, registered an objection at sentencing to the presentence report, or moved to vacate thesentencing on this ground and, thus, his claim in this regard is unpreserved (see People v Sander, 47 AD3d1012, 1013 [2008]; People vHenkel, 37 AD3d 873, 873 [2007], lv denied 8 NY3d 985 [2007]; People vProvost, 35 AD3d at 900). Were we to consider the issue, on these facts, we would find noabuse of discretion by County Court in resentencing him without an updated report (seePeople v Kuey, 83 NY2d 278, 282 [1994]; People v Walts, 34 AD3d 1043, 1044 [2006], lv denied 8NY3d 850 [2007]; People vAli-Rachedi, 34 AD3d 981, 981 [2006], lv denied 8 NY3d 878 [2007];cf. CPL 390.20 [1], [3]; see generally CPL 390.30 [3]), given the court'sunderstanding of his intervening history (see People v Kaulback, 46 AD3d 1027, 1028 [2007]).
Finally, we have considered and rejected defendant's remaining contentions, including thatwe exercise our interest of justice authority to vacate the judgment revoking his probation andreduce the sentence as harsh and excessive.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.