| People v Pringle |
| 2010 NY Slip Op 03693 [72 AD3d 1629] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bryan D.Pringle, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), renderedMarch 5, 2009. 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 probationpreviously imposed upon his conviction of criminal sexual act in the second degree (Penal Law§ 130.45 [1]) and sentencing him to a term of imprisonment. We note at the outset that wedo not consider the contentions of defendant concerning his inability to pay for drug and alcoholtreatment. The record establishes that County Court found that the People failed to meet theirburden of proof with respect to their allegations that defendant violated the conditions of hisprobation by failing to comply with drug and alcohol treatment requirements, and thus there isno issue with respect to defendant's alleged inability to pay for that treatment.
Contrary to the contention of defendant, the court properly determined that the People mettheir burden of proving by a preponderance of the evidence that defendant otherwise violated theterms and conditions of his probation (see People v Donohue, 64 AD3d 1187 [2009]; People v Bergman, 56 AD3d 1225[2008], lv denied 12 NY3d 756 [2009]). The People presented evidence that defendantmissed four required sex offender treatment appointments (see Donohue, 64 AD3d at1188), possessed pornographic materials, and failed to stay away from a park frequented bychildren, as directed by his probation officer (cf. People v DeMoney, 55 AD3d 953, 954 [2008]). In addition,defendant's probation officer testified at the violation hearing that she observed defendant at aconvenience store while he was on probation, and that his travel log did not contain the requiredentry reflecting that trip. That nonhearsay testimony provided the necessary " 'residuum ofcompetent legal evidence' " (id.) that defendant violated a condition of his probation, byestablishing that defendant failed to maintain the required log of his daily travel (seegenerally People v Roberge, 293 AD2d 913, 914 [2002], lv denied 98 NY2d 680[2002]). Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P.,Smith, Fahey, Peradotto and Green, JJ.