| People v Fitzgerald |
| 2012 NY Slip Op 08184 [100 AD3d 1268] |
| November 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Chad C.Fitzgerald, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Saratoga County (Scarano, J.),rendered May 5, 2010, which found defendant in violation of his probation and restored him toprobation supervision, and (2) from a judgment of said court, rendered July 27, 2010, whichrevoked defendant's probation and imposed a sentence of incarceration.
In August 2008, after pleading guilty to criminal sexual act in the third degree, defendant wassentenced to six months in jail followed by 10 years of probation. Defendant thereafter violatedthe terms of his probation three times. County Court continued defendant's probation followingthe first two violations, but following the hearing on the third violation his probation wasrevoked, and he was sentenced to a prison term of 1½ years followed by 10 years ofpostrelease supervision. Defendant appeals from the judgments arising from the latter twoviolations, rendered in May 2010 and July 2010, respectively.
Initially, as there is no argument presented in defendant's brief relative to the judgmentrendered in May 2010, we deem that appeal abandoned (see People v Audi, 88 AD3d 1070, 1071 n [2011], lvdenied 18 NY3d 856 [2011]). As to defendant's challenge to the judgment rendered in July2010 revoking his probation, testimony established that defendant was instructed not to go to aparticular hotel in the Town of Malta, Saratoga County, but failed to obey these instructions, andwas at that location on multiple occasions. Defendant further failed to submit to [*2]a sex offender evaluation, although this had been a condition of hisprobation since August 2008. Accordingly, we agree with County Court's finding that theviolation was established by a preponderance of the evidence (see CPL 410.70 [3]; People v Fusco, 91 AD3d 984, 985[2012]).
Defendant was offered numerous opportunities to comply with the conditions of hisprobation, and repeatedly violated those conditions shortly after being restored to his probationstatus. Therefore, we do not find his resentence to be harsh or excessive, as there was no abuse ofdiscretion or extraordinary circumstances warranting a reduction in the interest of justice (see People v Holland, 95 AD3d1504, 1505 [2012], lv denied 19 NY3d 974 [2012]; People v McQuality, 95 AD3d1369, 1371 [2012]).
Rose, J.P., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgments areaffirmed.