| People v Perna |
| 2010 NY Slip Op 05110 [74 AD3d 1807] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael R.Perna, Appellant. (Appeal No. 1.) |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Richard C. Kloch, Sr., A.J.), renderedOctober 24, 2008. The judgment revoked defendant's sentence of probation and imposed asentence of incarceration.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the probation component of thesplit sentence of incarceration and probation previously imposed upon his conviction ofpossessing a sexual performance by a child (Penal Law § 263.16) and sentencing him toan indeterminate term of incarceration. As a preliminary matter, we note that the contention ofdefendant that his plea was not knowing, voluntary and intelligent is not properly before usinasmuch as defendant did not appeal from the original judgment (see People v Dexter, 71 AD3d1504 [2010]). The valid waiver by defendant of the right to appeal does not encompass thesentence imposed following his violation of probation (see id. at 1504-1505), and thuswe may review defendant's contention concerning the sentence. We conclude, however, that thesentence is not unduly harsh or severe.
We reject the further contention of defendant that the People failed to prove by apreponderance of the evidence that he violated the conditions of his probation (see generallyCPL 410.70 [3]). " 'A violation of probation proceeding is summary in nature and a sentenceof probation may be revoked if the defendant has been afforded an opportunity to be heard' " (People v Bost, 39 AD3d 1027,1027-1028 [2007]; see People vDeMarco, 60 AD3d 1107, 1108 [2009]). Here, a declaration of delinquency was filedalleging that defendant violated the conditions of probation prohibiting him from residing with achild less than 17 years old and from accessing the Internet, and a violation hearing wasconducted. County Court was entitled to credit the testimony of the probation officer at thehearing that he visited defendant at the residence listed as his residence on the sex offenderregistration form and that a one-year-old child resided there. Although defendant presentedevidence that he was staying at that residence only on a temporary basis, the court's credibilitydetermination is entitled to [*2]great deference (seeDeMarco, 60 AD3d at 1108). The court was also entitled to credit the testimony of theprobation officer that defendant admitted to him that he accessed the Internet by means of avideo game device, rather than the testimony of defendant that he had not accessed the Internet.Present—Scudder, P.J., Peradotto, Carni, Lindley and Sconiers, JJ.