| People v Donohue |
| 2009 NY Slip Op 05468 [64 AD3d 1187] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kenneth C.Donohue, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedJune 28, 2007. The judgment revoked defendant's sentence of probation and imposed a sentenceof imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probationimposed upon his conviction of sexual abuse in the first degree (Penal Law § 130.65 [3])and sentencing him to a term of imprisonment. We conclude that the People met their burden ofestablishing by a preponderance of the evidence that defendant violated the terms and conditionsof his probation (see generally People vBergman, 56 AD3d 1225 [2008], lv denied 12 NY3d 756 [2009]). The Peopleestablished that defendant came into contact with two minor children, missed four appointmentsfor sex offender counseling, and failed to pay certain fees and a surcharge in a timely manner, allin violation of the terms and conditions of defendant's probation. Although defendant offeredexcuses for his various violations, County Court was entitled to discredit those excuses andinstead to credit the testimony of the People's witnesses (see generally People v Cruz, 35 AD3d 898 [2006], lv denied8 NY3d 845 [2007]). We further conclude that the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.