| People v Franco |
| 2010 NY Slip Op 00024 [69 AD3d 981] |
| January 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael J.Franco, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Schoharie County (Bartlett, III, J.),entered May 4, 2009, which modified the terms of defendant's probation.
Defendant was convicted in 2001 of sexual abuse in the first degree and sodomy in thesecond degree and was sentenced in Schenectady County to a 10-year term of probation. OnJune 27, 2008, defendant's probation supervision was formally transferred to the SchoharieCounty Probation Department. The Probation Department then requested a modification ofdefendant's conditions of probation to include, among other things, the requirements thatdefendant refrain from entering any establishment at which the primary purpose is the serving ofalcoholic beverages, that he refrain from the use, possession or purchase of alcoholic beveragesand that he comply with the Probation Department's computer restriction and Internet monitoringprogram. Following hearings, County Court in Schoharie County modified defendant'sconditions of probation to include the conditions requested by the Probation Department.Defendant now appeals.
We affirm. Initially, we find that defendant's contention that County Court failed to establishjurisdiction over him is without merit. Clearly, supervision of defendant's probation was properlytransferred to the Schoharie County Probation Department pursuant to CPL 410.80 (1). Thus,County Court assumed all powers and duties of the sentencing court and had sole [*2]jurisdiction in the case (see CPL 410.80 [2]). Defendant'sclaims regarding County Court's failure to notify defendant of the transfer during themodification hearings and that there was some confusion as to the date of the transfer are, atmost, claims of ministerial errors which do not affect the court's jurisdiction (see generallyPeople v Perry, 188 AD2d 909, 910 [1992], lv denied 81 NY2d 890 [1993]).
We also reject defendant's contention that County Court abused its discretion in modifyinghis conditions of probation. A court "may modify or enlarge the conditions of a sentence ofprobation . . . at any time prior to the expiration or termination of the period of thesentence" (CPL 410.20 [1]). A finding of a violation of a previously imposed condition is notnecessary to warrant enlargement of the conditions of probation imposed at sentencing(see Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL410.20, at 104). In determining conditions of probation, a court has discretion to imposeconditions it deems "reasonably necessary to insure that the defendant will lead a law-abidinglife or to assist him to do so" (Penal Law § 65.10 [1]). In this case, there is evidence in therecord that defendant consumed alcoholic beverages prior to committing the crimes and showedthe victim pornographic images on his computer. Thus, the additional conditions imposed "were. . . tailored in relation to the offense[s], and were reasonably related to defendant'srehabilitation" (People v Hale, 93 NY2d 454, 462 [1999]; see People v Wagner,9 Misc 3d 131[A], 2005 NY Slip Op 51597[U], *1 [2005]). Accordingly, we cannot concludethat County Court abused its discretion in modifying defendant's conditions of probation.
Peters, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed.