| People v Dudley |
| 2012 NY Slip Op 07333 [100 AD3d 1103] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dwan Dudley,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.), renderedSeptember 23, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
Following defendant's plea of guilty to the crime of assault in the second degree, he receiveda split sentence which included, as relevant here, five years of probation. Thereafter, a violationof probation petition was filed against him alleging that he violated several conditions of hisprobation by, among other things, possessing and selling crack cocaine to a confidentialinformant on three separate occasions. Following a violation hearing, County Court sustained thecharges, revoked defendant's probation and sentenced him to a prison term of seven years,followed by two years of postrelease supervision. Defendant now appeals.
We affirm. Upon our review of the transcript of the hearing and the evidence submittedtherein, we conclude that County Court's finding that defendant's sentence of probation should berevoked was supported by a preponderance of the evidence (see People v McQuality, 95 AD3d 1369, 1370 [2012]; People v Rockefeller, 79 AD3d1527 [2010], lv denied 16 NY3d 862 [2011]). We reject defendant's contention thatthe court's determination was based solely upon hearsay evidence (see People v Bevilacqua, 91 AD3d1120 [2012]). The videotapes depicting [*2]the controlleddrug transactions were not the only proof adduced at the hearing. Significantly, the policeofficers, who monitored the drug transactions, searched the confidential informant—bothbefore and after the sales—and performed field testing of the cocaine testified in detail asto their personal observations regarding these events. Accordingly, inasmuch as this testimonyconstituted direct proof, we find no basis to disturb the determination (see People vHogan, 284 AD2d 655, 655-656 [2001], lv denied 97 NY2d 641 [2001]).
We are also unpersuaded that defendant's sentence, which falls within the permissiblestatutory range, was harsh or excessive. Contrary to defendant's argument, we discern no basis toconclude that the sentence was imposed as retribution for his refusal of a plea offer and requestfor a revocation hearing (see People vHenkel, 37 AD3d 873, 874 [2007], lv denied 8 NY3d 985 [2007]). Given thenature of defendant's underlying conviction and his demonstrated inability to remain law-abidingand comply with the terms of his probation, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Smurphat, 91 AD3d980, 981 [2012], lv denied 18 NY3d 962 [2012]; People v Rockefeller, 79AD3d at 1528).
Defendant's contention, set forth in his pro se brief, that County Court lacked jurisdiction torevoke his probation and impose sentence is unsupported by the record. Nor do we findsubstantiation for his claim of ineffective assistance of counsel. In any event, to the extent thatdefendant's arguments in that regard reference matters outside the record, such claims wouldmore properly be raised in the context of a CPL article 440 motion (see People v Cruz, 53 AD3d 986[2008]).
Peters, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.