| People v Kocher |
| 2014 NY Slip Op 02811 [116 AD3d 1301] |
| April 24, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJeremy M. Kocher, Appellant. |
—[*1] Gary M. Pasqua, Special Prosecutor, Malone, for respondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 18, 2012, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the third degree.
In April 2011, after waiving indictment and agreeing to be prosecuted by a superiorcourt information, defendant pleaded guilty to attempted burglary in the third degree.Pursuant to the plea agreement, he waived his right to appeal and County Court agreed toplace defendant on interim probation for one year, which included several conditions,including that defendant abstain from alcohol use, comply with his curfew and "[b]egainfully employed at suitable verifiable employment and/or attend school on a regularbasis." Upon successful completion of interim probation, defendant was to be grantedyouthful offender status and sentenced to five years of probation. If he did notsuccessfully complete interim probation, however, the court advised him that it was notbound by the commitment and was free to sentence him to up to four years in prison.After entering the negotiated plea, defendant was released to probation supervision;however, in July 2011, defendant was remanded to jail pending further proceedings as aresult of allegations by the Probation Department that he violated a term of his release byconsuming alcohol. In August 2011, upon receiving new assurances of futurecompliance from defendant, the court chose to honor the prior commitment and placedefendant on one year of interim probation, with final sentencing adjourned until July 18,2012.[*2]
Thereafter, prior to that sentencing date, theProbation Department submitted a report which, among other things, detailed certainalleged violations of interim probation by defendant.[FN*]Subsequently, at the scheduled sentencing proceeding, County Court found thatdefendant failed to comply with all the terms of his interim probation and declined toadjudicate him a youthful offender. The court sentenced defendant to, among otherthings, six months in jail and five years of probation. This appeal followed.
We affirm. Contrary to defendant's argument, County Court did not violate hisconstitutional rights or "abuse its discretion by imposing the enhanced sentence withoutconducting a formal hearing" (People v French, 72 AD3d 1397, 1398 [2010], lvdenied 15 NY3d 804 [2010]). Notably, a full evidentiary hearing is not requiredunder circumstances such as these as long as the defendant is afforded an opportunity torespond and the court "conduct[s] an inquiry of sufficient depth to assure itself that theinformation upon which it bases the sentence is reliable and accurate" (People vMcDevitt, 97 AD3 1039, 1041 [2012], lv denied 20 NY3d 987 [2012][internal quotation marks and citation omitted]).
Here, defendant was afforded a full opportunity to be heard and the record confirmsthat he disputed certain of the allegations against him, such as the claim that he possessedalcohol and failed to seek employment and pay restitution in violation of the conditionsof his interim probation. Nevertheless, defendant did not dispute the other allegations,including a claim that he left the state without permission (see People v Brainard, 8 AD3d909, 910 [2004]). Under the circumstances, we conclude that the evidence was"sufficient to support the conclusion that defendant violated the conditions of his interimprobation" (People vDissottle, 68 AD3d 1542, 1544 [2009], lv denied 14 NY3d 799 [2010]).
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although defendantargues that County Court should not have reviewed the Probation Department reportbecause it is unsworn, by not objecting, defendant failed to preserve this issue for ourreview (see People vDissottle, 68 AD3d 1542, 1544 [2009], lv denied 14 NY3d 799 [2010]).