| People v Smurphat |
| 2012 NY Slip Op 00051 [91 AD3d 980] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KevinC. Smurphat, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedJune 10, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.
Following his plea of guilty to one count each of attempted sexual abuse in the first degreeand endangering the welfare of a child, defendant was sentenced to six months in jail and 10years of probation (91 AD3d 979 [2012] [decided herewith]). Thereafter, he was charged withviolating certain terms of his probation, including the condition barring him from having contactwith children under the age of 18 years, as well as the condition prohibiting him from possessingpornography. Following a hearing, County Court found defendant guilty of violating those termsof his probation and his probation was revoked. The court resentenced defendant on theunderlying crime of attempted sexual abuse in the first degree to a prison term of three yearsfollowed by 10 years of postrelease supervision.[FN*]This appeal ensued.
We affirm. Defendant's sole argument on appeal is that the resentence imposed by [*2]County Court, which was not the maximum available (seePenal Law § 70.80 [4] [a] [iv]), is harsh and excessive. Based upon our review of therecord, we disagree. The record persuasively established defendant's inability to comply withimportant conditions of his probation (see People v Smith, 87 AD3d 1203, 1203 [2011]; People v Garren, 84 AD3d 1638,1638 [2011], lv denied 17 NY3d 816 [2011]). Under the circumstances presented herein,"we do not find the existence of extraordinary circumstances or any abuse of discretionwarranting a reduction of the resentence in the interest of justice" (People v Kornell, 85 AD3d 1449,1450 [2011], lv denied 17 NY3d 860 [2011]; see People v DeMarco, 60 AD3d 1107, 1109 [2009]).
Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant was resentenced totime served on the endangering the welfare of a child count.