| People v McQuality |
| 2012 NY Slip Op 03480 [95 AD3d 1369] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vAndrew C. McQuality, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered November 3, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant was convicted of criminal possession of a weapon in the fourth degree andsentenced to three years of probation. As a condition of his probation, he was required "to abstainfrom the purchase, use or possession of alcoholic beverages, marihuana, controlled substances orillegal drug[s]." Soon thereafter, defendant provided his probation officer with a urine samplethat tested positive for marihuana, and he executed a written admission to having tested positivefor marihuana on that date and to having consumed marihuana in direct violation of a conditionof his probation. As a result, a declaration of delinquency was issued and, following a hearing,County Court found that defendant had violated a condition of his probation, revoked hisprobation and sentenced him to 365 days in jail. He now appeals, and we affirm.
We reject defendant's contention that there was insufficient evidence establishing that heviolated a condition of his probation. "A court may revoke a defendant's probation provided the'defendant has been afforded an opportunity to be heard and the court determines by apreponderance of the evidence that a condition of the probation has been violated' " (People v [*2]Wells, 69 AD3d 1228, 1229 [2010], quoting People v Jangrow, 34 AD3d 991,991-992 [2006]; see People vBevilacqua, 91 AD3d 1120, 1120 [2012]). At the hearing, defendant's probation officertestified that defendant's probationary period began on October 19, 2009, that a condition of hisprobation was to refrain from drug use, and that he tested positive for marihuana on October 27,2009. To the extent that defendant claims that the probation officer's testimony as to the resultsof the drug test constituted hearsay, we note that defendant himself conceded both during histestimony and in his written admission, which was received into evidence without objection, thathe tested positive on that date (seePeople v Provost, 35 AD3d 899, 900 [2006]). Although the written admission does notspecify the date of his use, defendant acknowledged therein that he consumed marihuana "indirect violation of [his] terms and conditions of probation," which established his use during thattime. During the hearing, defendant denied having used marihuana while on probation, claiminginstead that he had done so just prior to the commencement of his probationary period, andwould not confirm that he read the admission before signing it or that the signature found on theadmission was his. This assertion, however, presented a credibility issue for County Court toresolve (see People v DeMarco, 60AD3d 1107, 1109 [2009]; People vOehler, 52 AD3d 955, 956 [2008], lv denied 11 NY3d 792 [2008]). Upon ourreview of the record and giving deference to County Court's credibility determinations (see People v Cruz, 35 AD3d 898,899 [2006], lv denied 8 NY3d 845 [2007]), we find no basis to disturb the court'sdetermination that defendant violated his probation (see People v Wells, 69 AD3d at1229; People v Oehler, 52 AD3d at 956).
Defendant also contends that the People committed Brady and Rosarioviolations by failing to disclose certain notes of the probation officer who testified at the hearing.These claims, raised for the first time on appeal, are unpreserved for our review (see People v Shoga, 89 AD3d1225, 1231 [2011], lv denied 18 NY3d 886 [2012]; People v Kearney, 39 AD3d 964,966 [2007], lv denied 9 NY3d 846 [2007]) and, in any event, are without merit (seePeople v Kelly, 88 NY2d 248, 252 [1996]; People v Hawes, 298 AD2d 706, 708[2002], lv denied 99 NY2d 582 [2003]). With respect to defendant's argument thatCounty Court erred in excepting from disclosure a certain addendum to the presentenceinvestigation report, the court stated on the record its reasons for nondisclosure, as required byCPL 390.50 (2) (a), and, upon our review of the addendum, we find no abuse of discretion in thecourt's decision not to disclose it (see generally People v Perry, 36 NY2d 114, 120-121[1975]; compare People v Smith, 8AD3d 1043, 1043-1044 [2004]). Finally, we are unpersuaded that defendant's sentence washarsh or excessive. Given defendant's inability to comply with the terms of his probation, asdemonstrated by his violation a mere eight days into his probationary period, we find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the sentence in the interest ofjustice (see People v Smurphat, 91AD3d 980, 981 [2012]; People vSmith, 87 AD3d 1203, 1203 [2011]).
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.