| People v Dick |
| 2013 NY Slip Op 03705 [106 AD3d 1332] |
| May 23, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vBrandon R. Dick, Appellant. |
—[*1] Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered August 16, 2011, which resentenced defendant following his conviction of thecrime of grand larceny in the fourth degree.
Defendant was sentenced by the County Court of Columbia County to intermittentjail time in the Columbia County jail and five years of probation following his convictionof grand larceny in the fourth degree, a felony. County Court signed an order the sameday transferring supervision of defendant's probation to the Probation Department ofGreene County, where he stated he resided (see CPL 410.80 [1]). Subsequently,County Court issued a warrant for defendant's arrest after he failed to report as scheduledto the Columbia County jail to serve a part of his intermittent sentence. Thereafter,County Court revoked defendant's intermittent sentence (see Penal Law §85.05 [1] [b]), after giving him an opportunity to be heard, and resentenced him to fourmonths in the Columbia County jail, and continued the five years of probation.Defendant appeals, contending that County Court lacked jurisdiction once the probationmatter was transferred by order to Greene County. We disagree and affirm.
A sentence of intermittent imprisonment "is a revocable sentence" (Penal Law§ 85.00 [1]; see Penal Law § 60.01 [2] [a] [ii]; [b]). Given thefinding by County Court that defendant violated the intermittent sentence imposed bythat court when he failed to appear at the "institution to which he [was] committed atsuch times as [were] specified by the court in the sentence" (Penal Law § 85.00[1]), that sentencing court was authorized to modify or revoke its [*2]sentence of intermittent imprisonment (see PenalLaw § 85.05 [1] [b]). Defendant's reliance on CPL 410.80—which providesfor transfer of probation supervision by the sentencing court to the ProbationDepartment in the jurisdiction (county) where the defendant resides atsentencing—is misplaced (see People v Mitchell, 15 NY3d 93, 98-99 [2010]; People v Roberts-Alexandrov,102 AD3d 219, 221-222 [2012]). Defendant was not charged with violatingprobation but, rather, was alleged to have violated his intermittent sentence ofimprisonment. The transfer in CPL 410.80 (2) of "all powers and duties" of thesentencing court over supervision of probationers to the receiving court does not, asdefendant argues, divest the sentencing court of its express jurisdiction to modify orrevoke a sentence of intermittent imprisonment pursuant to Penal Law § 85.05 (1)(b) (see People v Mitchell, 15 NY3d at 98-99). Accordingly, the judgment willnot be disturbed.
Peters, P.J., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.