| People v Wells |
| 2010 NY Slip Op 00591 [69 AD3d 1228] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brenda J.Wells, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered August 22, 2008, which revoked defendant's probation and imposed a sentence ofimprisonment.
In April 2008, defendant was convicted of driving while intoxicated and sentenced to fiveyears of probation. The terms of probation included that defendant "[m]eaningfully participatein, cooperate with and successfully complete any alcohol or substance abuse counseling and/ortreatment program as directed by the Probation Department" and that she not use alcoholicbeverages. County Court subsequently found that defendant had violated these terms, revokedher probation and resentenced her to a prison term of 1 to 3 years. Defendant now appeals.
A court may revoke a defendant's probation provided the "defendant has been afforded anopportunity to be heard and the court determines by a preponderance of the evidence that acondition of the probation has been violated" (People v Jangrow, 34 AD3d 991, 991-992 [2006]; accord People v DeMarco, 60 AD3d1107, 1108 [2009]). Here, defendant contends that there was insufficient evidenceestablishing her probation violation. We disagree. With respect to the allegation that defendantfailed to complete a prescribed treatment program, there is evidence in the record that defendantfailed to either participate in or complete various prescribed programs, and the case manager of aprogram that defendant did participate in testified that defendant was dismissed from theprogram due to disruptive and disrespectful behavior. Moreover, defendant admittedly violatedthe term of probation forbidding the use of alcohol, testifying that she drank [*2]beer the day after being placed on probation. Under thesecircumstances, we find no reason to disburb County Court's determination that defendantviolated her probation (see People vGarner, 56 AD3d 951, 952 [2008], lv denied 12 NY3d 783 [2009]). We findsimilarly unavailing defendant's contention that her sentence was harsh and excessive, as ourreview of the record reveals no clear abuse of discretion by County Court nor the existence ofextraordinary circumstances warranting a reduction of the resentence (see People v Hunter, 62 AD3d1207, 1208 [2009]; People vCarter, 59 AD3d 750, 750 [2009]; People v Wheeler, 52 AD3d 948, 948 [2008]).
Cardona, P.J., Peters, Rose and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.