| People v Cummings |
| 2015 NY Slip Op 09754 [134 AD3d 1566] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHeath M. Cummings, Appellant. |
William J. Gabler, Olean, for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.),rendered June 12, 2013. The judgment revoked defendant's sentence of probation andimposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence ofprobation imposed upon his conviction of sexual abuse in the first degree (Penal Law§ 130.65 [3]) and sentencing him to a term of incarceration. Contrary todefendant's contention, the violation of probation was not de minimis nor a meretechnicality. Defendant was sentenced to probation for an offense involving sexualcontact with a young boy, and one of the conditions of probation was that defendant wasprohibited from having any contact or association with children under the age of 18. Theevidence at the revocation hearing established that defendant was developing arelationship with a man who is the father of two boys, that defendant rode in a vehiclewith those boys, that he gave a false name to the boys' parents, and that he began toingratiate himself with the boys by letting them play with his dogs.
Furthermore, given the nature of his prior offense and the violation, we conclude thatthe term of incarceration, which is approximately one half of the maximum sentence, isnot unduly harsh or severe. We have considered defendant's remaining contention andconclude that it is without merit. Present—Smith, J.P., Peradotto, Lindley, Whalenand DeJoseph, JJ.